Opinion
Civil Action No. 3:03-CV-2527-L.
March 29, 2005
MEMORANDUM OPINION AND ORDER
Before the court is Defendant Lynn Smith Chevrolet's Motion for Summary Judgment, filed January 3, 2005; Plaintiff Ernest L. Smith's Motion to Strike Portions of Defendant's Summary Judgment Evidence, filed January 24, 2005; and Plaintiff's Motion for Leave to Amend Pleadings, filed February 7, 2005. After careful consideration of the motions, responses, reply, appendices, record and applicable law, the court grants in part and denies in part Defendant Lynn Smith Chevrolet's Motion for Summary Judgment; denies Plaintiff Ernest L. Smith's Motion to Strike Portions of Defendant's Summary Judgment Evidence; and denies Plaintiff's Motion for Leave to Amend Pleadings.
Defendant filed a Reply to Plaintiff's Response to Defendant's Motion for Summary Judgment. No other replies have been filed.
I. Factual and Procedural Background
This case arises out of the employment and subsequent termination of Plaintiff Ernest Lee Smith ("Smith" or "Plaintiff") by Defendant Lynn Smith Chevrolet ("Lynn Smith" or "Defendant"). Plaintiff filed this case on October 17, 2003, alleging that Defendant discriminated against him based on race in violation of 42 U.S.C. § 1981 and made a negligent misrepresentation in violation of state law. Defendant contends that it never discriminated against Smith based on race, and that it terminated him for violating its sexual harassment policy. Defendant has filed a motion for summary judgment, contending that no genuine issue of material fact exists with respect to any of Plaintiff's asserted claims, and that it is therefore entitled to entry of judgment as a matter of law. The court now sets forth the facts upon which it relies to resolve the summary judgment motion. In setting forth the facts, the court applies the summary judgment standard as set forth in the following section.
Smith, an African-American male, was hired by Defendant on or around May 14, 1995 to work as a used car salesman at its dealership located in Burleson, Texas. Pl. App. at 9, 11. Smith worked for Defendant for approximately six and one-half years until Defendant terminated him on October 17, 2001, for allegedly violating its sexual harassment policy. Id. at 14, 22, 80-81. While he was employed at Lynn Smith, Plaintiff was the only African-American used car salesman. Id. at 59. On one occasion, another employee used a racial epithet against him. Id. at 21, 47, 53-54.
Lynn Smith required its salespeople to participate in, and pay for, a company referral program, named "Loyal for Life." Id. at 217-219. On the morning of October 17, 2001, Plaintiff informed the general sales manager, John Woollis, that he no longer wanted to participate in the "Loyal for Life" referral program; Woollis became angry and insisted that Plaintiff continue to participate. Id. at 73, 75, 77, 94, 214-217. Later that same day, Woollis called Plaintiff to his office and terminated him effective immediately for allegedly harassing a female employee. Id. at 22, 77, 80-81, 220-21. Neither Woollis nor anyone else at Lynn Smith met with Plaintiff to discuss the allegations of sexual harassment prior to terminating him. Id. at 22, 77, 221, 226. Defendant had a policy to talk to both parties and any witnesses before making a determination regarding sexual harassment allegations. Id. at 221-23, 227.
II. Defendant's Motion for Summary Judgment
A. Summary Judgment Standard
Summary judgment shall be rendered when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, 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. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323-25 (1986); Ragas v. Tennessee Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998). A dispute regarding a material fact is "genuine" if the evidence is such that a reasonable jury could return a verdict in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When ruling on a motion for summary judgment, the court is required to view all inferences drawn from the factual record in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986); Ragas, 136 F.3d at 458. Further, a court "may not make credibility determinations or weigh the evidence" in ruling on motion for summary judgment. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000); Anderson, 477 U.S. at 254-55.
Once the moving party has made an initial showing that there is no evidence to support the nonmoving party's case, the party opposing the motion must come forward with competent summary judgment evidence of the existence of a genuine fact issue. Matsushita, 475 U.S. at 586. Mere conclusory allegations are not competent summary judgment evidence, and thus are insufficient to defeat a motion for summary judgment. Eason v. Thaler, 73 F.3d 1322, 1325 (5th Cir. 1996). Unsubstantiated assertions, improbable inferences, and unsupported speculation are not competent summary judgment evidence. See Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir.), cert. denied, 513 U.S. 871 (1994). The party opposing summary judgment is required to identify specific evidence in the record and to articulate the precise manner in which that evidence supports his claim. Ragas, 136 F.3d at 458. Rule 56 does not impose a duty on the court to "sift through the record in search of evidence" to support the nonmovant's opposition to the motion for summary judgment. Id.; see also Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915-16 n. 7 (5th Cir.), cert. denied, 506 U.S. 832 (1992). "Only disputes over facts that might affect the outcome of the suit under the governing laws will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248. Disputed fact issues which are "irrelevant and unnecessary" will not be considered by a court in ruling on a summary judgment motion. Id. If the nonmoving party fails to make a showing sufficient to establish the existence of an element essential to its case and on which it will bear the burden of proof at trial, summary judgment must be granted. Celotex, 477 U.S. at 322-23.
B. Analysis
Plaintiff alleges that Lynn Smith intentionally discriminated against him based on race in the terms and conditions of his employment in violation of 42 U.S.C. § 1981. In support of his discrimination claim, Plaintiff contends that another employee used a racial epithet against him on one occasion, and that Defendant discriminated against him by: not working his car deals hard enough; not giving him credit on certain deals; having different standards for Plaintiff than for its Caucasian salespersons; stripping Plaintiff of his title as salesman of the month on one occasion; requiring him to participate in the "Loyal for Life" employee referral program; and unlawfully terminating him based on false allegations that he sexually harassed a female employee. Plaintiff also alleges that Defendant made a negligent misrepresentation upon which he relied in violation of state law. Defendant has moved for summary judgment with respect to all of Plaintiff's claims. The court will address Plaintiff's claims in turn.
1. Plaintiff's Claims of Discrimination under 42 U.S.C. § 1981
Section 1981, as amended by Congress in 1991, provides as follows:
(a) Statement of equal rights
All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.
(b) "Make and enforce contracts" defined
For purposes of this section, the term "make and enforce contracts" includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.
(c) Protection against impairment
The rights protected by this section are protected against impairment by nongovernmental discrimination and impairment under color of State law.42 U.S.C. § 1981.
Plaintiff's § 1981 claims are analyzed under the same evidentiary standard and same burden-shifting approach as cases brought pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e. Walker v. Thompson, 214 F.3d 615, 625 (5th Cir. 2000); Shackelford v. Deloitte Touche, LLP, 190 F.3d 398, 403 n. 2 (5th Cir. 1999).
To survive a motion for summary judgment, a plaintiff in a Title VII or § 1981 discrimination case must first establish a prima facie case of discrimination by a preponderance of the evidence. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981). Once this prima facie case has been established, there is a presumption of discrimination, and the burden shifts to the defendant to articulate some legitimate, nondiscriminatory reason for the challenged employment action. McDonnell Douglas, 411 U.S. at 802-04. If such a showing is made, the burden shifts back to the plaintiff to demonstrate that the articulated reason was merely a pretext for intentional discrimination. Id.
The third step of the McDonnell Douglas test has been altered by the Supreme Court's decision in Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003) (holding that in Title VII cases, the mixed-motive theory of discrimination is available in cases with circumstantial evidence of discrimination). In light of Desert Palace, the Fifth Circuit has modified the final step of McDonnell Douglas. See Rachid v. Jack in the Box, Inc., 376 F.3d 305, 312 (5th Cir. 2004). In order to survive summary judgment under the modified McDonnell Douglas test, at the final step a plaintiff must offer sufficient evidence to create a genuine issue of fact that either (1) a defendant's reason is not true, but is instead a pretext for discrimination or (2) a defendant's reason, though true, is only one of the reasons for its conduct and that another "motivating factor" is the plaintiff's protected characteristic. Id. See also Machinchick v. PB Power, Inc., 398 F.3d 345, 352 (5th Cir. 2005) (same). Because there is no evidence or argument of mixed motive in this case, the court limits its analysis at the final step to whether Plaintiff has met his burden of establishing pretext.
After a Title VII or § 1981 case reaches the pretext stage, the question for summary judgment is whether a rational factfinder could find that the employer intentionally discriminated against the plaintiff on the basis of race. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 511 (1993). A "plaintiff can survive summary judgment by producing evidence that creates a jury issue as to the employer's discriminatory animus or the falsity of the employer's legitimate nondiscriminatory explanation." Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893, 897 (5th Cir. 2002). "Pretext-plus" is not required to support an inference of retaliatory discrimination. Russell v. McKinney Hosp. Venture, 235 F.3d 219, 223 (5th Cir. 2000). "[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," and may therefore be enough to prevent summary judgment or judgment as a matter of law. See Reeves, 530 U.S. at 148; Sandstad, 309 F.3d at 897. This showing, however, is not always enough to prevent summary judgment "if the record conclusively revealed some other, nondiscriminatory reason for the employer's decision, or if the plaintiff created only a weak issue of fact as to whether the employer's reason was untrue and there was abundant and uncontroverted independent evidence that no discrimination had occurred." Reeves, 530 U.S. at 148. On the other hand, in the context of an unlawful discrimination or retaliation claim, summary judgment is inappropriate "if the evidence taken as a whole (1) creates a fact issue as to whether each of the employer's stated reasons was what actually motivated the employer and (2) creates a reasonable inference that [race] was a determinative factor in the actions of which plaintiff complains." Vadie v. Mississippi State Univ., 218 F.3d 365, 373 n. 23 (5th Cir.), reh'g denied, 232 F.3d 212 (5th Cir. 2000), cert. denied, 531 U.S. 1113 (2001) (quoting Rhodes v. Guiberson Oil Tools, 75 F.3d 989, 994 (5th Cir. 1996)) ( en banc).
a. Plaintiff's Prima Facie Case
Defendant argues that it is entitled to judgment as a matter of law since Plaintiff has failed to make out a prima facie case under § 1981. See Def. Mot. at 5. To support its argument, however, Defendant incorrectly relies on the elements of a prima facie case under § 1981 arising in a commercial context, rather than in an employment context. See id. at 5 (citing Bellows v. Amoco Oil Co., 118 F.3d 268, 274 (5th Cir. 1997), cert. denied, 522 U.S. 1068 (1998)) (commercial dispute). "In a commercial context, in order to establish a prima facie case under § 1981, the plaintiff must show that (1) he or she is a member of a racial minority; (2) the defendant had an intent to discriminate on the basis of race; and (3) the discrimination concerned one or more of the activities enumerated in the statute." Causey v. Sewell Cadillac-Chevrolet, Inc., 394 F.3d 285, 288-89 (5th Cir. 2004). Plaintiff, in turn, relies on the same erroneous standard to support his argument that he has made out a prima facie case. See Pl. Resp. at 8-9.
To establish a prima facie case of race discrimination in a § 1981 employment discrimination case, Plaintiff must establish that he: (i) is a member of a protected class; (ii) was qualified for the position; (iii) was subject to an adverse employment action; and (iv) was replaced by someone outside the protected class, or, in the case of disparate treatment, show that other similarly situated employees were treated more favorably. Bryan v. McKinsey Co., Inc., 375 F.3d 358, 360 (5th Cir. 2004); Pegram v. Honeywell, Inc., 361 F.3d 272, 281 (5th Cir. 2004). Because Defendant has not challenged Plaintiff's prima facie case under any of these elements, the court must perforce assume, without finding, that Plaintiff has established a prima facie case on his § 1981 claims.
Although the court is hard-pressed to find that Plaintiff's § 1981 claims (other than his termination) are "adverse employment actions," Defendant does not base its motion on these grounds; thus, the court may not enter judgment in Defendant's favor based on Plaintiff's seeming failure to establish this prima facie element. See John Deere Co. v. American Nat'l Bank, Stafford, 809 F.2d 1190, 1192 (5th Cir. 1987) ("[A] district court may not grant summary judgment sua sponte on grounds not requested by the moving party."). See generally Mota v. University of Texas Houston Health Sci. Ctr., 261 F.3d 512, 519 (5th Cir. 2001) ("Adverse employment actions include only ultimate employment decisions . . . such as hiring, granting leave, discharging, promoting, and compensating.") (internal quotation marks, citation, and footnotes omitted). In contrast, a challenge to Plaintiff's prima facie case on his § 1981 termination claim would likely be unsuccessful, since it is undisputed that Plaintiff is African-American, was amply qualified for his position as a used car salesman, was terminated (allegedly for violating Defendant's sexual harassment policy), and that a Caucasian employee, also charged with violating the policy, was not similarly terminated.
b. Defendant's Legitimate, Nondiscriminatory Reasons
As Plaintiff's prima facie case has been established, there is a presumption of discrimination, and the burden shifts to Defendant to articulate some legitimate, nondiscriminatory reason for the challenged employment actions. McDonnell Douglas, 411 U.S. at 802-04. With regard to Plaintiff's allegations that he was terminated because of his race, the court finds that Defendant has proffered the legitimate, nondiscriminatory reason that it terminated Plaintiff because it believed that he sexually harassed another employee in violation of its sexual harassment policy. See Plf. App. at 220-27, Woollis Depo. at 61-68; id. at 255, Exh. 3 to Woollis Depo (termination of employment notice). With regard to Plaintiff's remaining § 1981 allegations of race discrimination, the court similarly finds that Defendant has proffered legitimate, nondiscriminatory reasons for the actions and inactions about which Plaintiff complains. As to Plaintiff's claims that Defendant discriminated against him based on race by not giving him credit on certain deals ( see id. at 42, 90), taking away his title of salesperson of the month on one occasion ( see id. at 21, 49-50, 52, 70-71, 91), not working his car deals hard enough ( see id. at 32, 89), and having different standards for Plaintiff than for certain of its Caucasian salespersons ( see id. at 43-45, 47, 64-65), Defendant proffers that it determined salesperson of the month and determined credit on deals based on total car sales, and not on race, and that other salespersons quite simply outperformed Plaintiff. Defendant further proffers that it had a policy of treating salesmen who sold more cars differently than salesmen who sold fewer cars, and that this was not based on race. With regard to requiring Plaintiff to participate in the "Loyal for Life" employee referral program, Defendant has shown that the program was designed to bring in repeat customers and was mandatory for all car salespersons, regardless of race.
Because Defendant has articulated legitimate, nondiscriminatory reasons for terminating Plaintiff and for the other actions of which he complains, the burden shifts back to Plaintiff to demonstrate that the articulated reasons are merely a pretext for intentional discrimination. McDonnell Douglas, 411 U.S. at 802-04.
c. Pretext
Turning now to Plaintiff's burden of showing pretext, in order to defeat Defendant's Motion for Summary Judgment, Plaintiff must produce sufficient evidence to permit a jury to disbelieve that Defendant's proffered reason was its true motivation. Laxton v. Gap Inc., 333 F.3d 572, 579 (5th Cir. 2003). "The factfinder's disbelief of the reasons put forward by the defendant (particularly if disbelief is accompanied by a suspicion of mendacity) may, together with the elements of the prima facie case, suffice to show intentional discrimination." Id. at 579-80 (quoting Reeves, 530 U.S. at 147) (internal citation omitted).
1. Plaintiff's § 1981 Claims Arising from his Termination
To reiterate, Defendant's proffered reason for Plaintiff's termination was that he had sexually harassed another employee in violation of its sexual harassment policy. The court finds that Plaintiff has provided sufficient evidence to create a jury issue whether Defendant's justification for his termination was pretextual. Specifically, Plaintiff has submitted evidence that (i) Defendant departed from its usual practice or policy when terminating him for allegedly sexually harassing another employee, and (ii) a Caucasian employee who was similarly accused of violating the same policy was not similarly terminated.
Smith also submits undisputed evidence that another employee called him by a racial epithet. Pl. App. at 21, 54, 59. Plaintiff has provided no evidence that the racial epithet was uttered by an official who had authority to terminate him or by anyone with influence over the official decisionmaker. Thus, although the content of the remark reveals racial animus on the part of the speaker, the court considers the racial epithet as a stray remark, and not evidence of race discrimination. See Russell, 235 F.3d at 226 (To be evidence of discrimination, remarks, among other criteria, must be made by one "principally responsible" for a plaintiff's termination or be uttered by someone who "had influence or leverage over the official decisionmaker."); Palasota v. Haggar Clothing Co., 342 F.3d 569, 578 (5th Cir. 2003), cert. denied, 540 U.S. 1184 (2004) (same).
Woollis, the general sales manager, testified in deposition that Defendant's sexual harassment policy is "to talk to both parties and any witnesses" before making a determination regarding sexual harassment allegations. Pl. App. at 221-22, 227. Woollis testified that he does not know whether he followed this policy in Plaintiff's case. Id. Plaintiff has testified that neither Woollis, nor anyone else at Lynn Smith, spoke to him about the allegations of sexual harassment prior to terminating him. Id. at 22, 63. This evidence, viewed in the light most favorable to Plaintiff, shows that Defendant departed from its usual practice or policy regarding the investigation of allegations of sexual harassment. Evidence of an employer's failure to follow internal procedures in terminating an employee may be evidence of pretext. See Machinchick, 398 F.3d at 355 and n. 29 (defendant's failure to utilize its progressive discipline system, including a verbal warning and written warning, in case involving plaintiff's failure to perform duties, creates an inference of pretext of employer's explanation for discharge); Russell, 235 F.3d at 224 (defendant's failure to follow its own internal procedures prior to terminating employee, along with other evidence, created a jury issue that employer's justification for terminating plaintiff was pretextual); Brown v. Gerrard Mfg. Co., 643 F.2d 273, 276 (5th Cir. 1981) (departure from internal policy establishes inference of pretext of defendant's explanation and tends to shows that explanation tendered not legitimate).
Plaintiff has also submitted undisputed evidence that Defendant did not terminate a Caucasian employee, Melvin Barton, for his violation of the same sexual harassment policy. Pl. App. at 84-85, 233-35. This evidence of disparate treatment, in tandem with evidence that Defendant failed to follow its own internal policy in investigating allegations of sexual harassment, creates a jury issue as to whether Defendant's justification for Plaintiff's termination was pretextual. See Laxton, 333 at 578 (plaintiff may establish pretext through evidence of disparate treatment); Redditt v. Mississippi Extended Care Centers, Inc., 718 F.2d 1381, 1385-86 (5th Cir. 1983) (evidence of pretext found where African-American plaintiff produced evidence that white employees who engaged in conduct constituting cause for dismissal received only warnings or disciplinary action, whereas plaintiff was terminated for same conduct).
Defendant argues that Plaintiff's evidence of disparate treatment fails since the allegation against Barton was brought subsequent to the woman who made the claim leaving the company, and no investigation could be performed. Def. Reply at 3. This argument fails to address the undisputed fact that Plaintiff was terminated for violating the policy, while Barton was not, though Defendant accused both of violating the same policy.
The court determines from the evidence that Plaintiff has raised a genuine issue of material fact regarding whether Defendant's reason for terminating him was pretextual. Thus, the court denies Defendant's Motion for Summary Judgment regarding Plaintiff's § 1981 claims arising out of his termination.
2. Plaintiff's Remaining § 1981 Claims
The court now turns to Plaintiff's remaining claims that Defendant discriminated against him based on race in violation of 42 U.S.C. § 1981 by: not working his car deals hard enough; not giving him credit on certain deals; having different standards for Plaintiff than for its Caucasian salespersons; stripping Plaintiff of his title as salesman of the month on one occasion; and requiring him to participate in the "Loyal for Life" employee referral program. Defendant has moved for summary judgment on all these claims, contending that Plaintiff has submitted no evidence of discrimination, but relies only on his own "subjective interpretation" that its actions were discriminatory. Def. Reply at 1. The court agrees.
After a careful review of the competent summary judgment evidence, the court finds that Plaintiff's remaining claims are based merely on his subjective belief that he was entitled to certain deals and rewards as part of his employment, and that he has failed to produce evidence that he was denied them because of his race. Rather than submit any summary judgment evidence, Plaintiff relies on his subjective belief and unsupported speculation that he was discriminated against with regard to allegedly: not having his car deals worked hard enough (Pl. App. at 32, 89); not receiving credit on certain deals ( see id. at 42, 90); not being named salesperson of the month ( see id. at 21, 49-50, 52, 70-71, 91); and being held to a different standard than Caucasian salespersons ( see id. at 43-45, 47, 64-65). Plaintiff also alleges that Defendant discriminated against him by requiring him to participate in the "Loyal for Life" employee referral program; yet it is undisputed that this program was mandatory for all car salespersons, regardless of race. See id. at 73, 75, 77-78. "[A] subjective belief of discrimination, however genuine, [may not] be the basis of judicial relief." Lawrence v. University of Texas Med. Branch at Galveston, 163 F.3d 309, 313 and n. 21 (5th Cir. 1999) (quoting Elliott v. Group Medical Surgical Serv., 714 F.2d 556, 567 (5th Cir. 1983) (subsequent history omitted)); Morris v. Covan World Wide Moving, Inc., 144 F.3d 377, 380 (5th Cir. 1998) ("unsubstantiated or conclusory assertion that a fact issue exists will not suffice" to defeat a properly supported motion for summary judgment); Roberson v. Alltel Information Services, 373 F.3d 647, 654 (5th Cir. 2004) ("This Court has cautioned that conclusory allegations, speculation, and unsubstantiated assertions are inadequate to satisfy the nonmovant's burden in a motion for summary judgment.") (quotation omitted). Cf. Breaux v. City of Garland, 205 F.3d 150, 160 (5th Cir.), cert. denied, 531 U.S. 816 (2000) ("[A] plaintiff's subjective perception that a demotion has occurred is not enough to constitute an adverse employment action").
Because Plaintiff has failed to point to evidence which creates a genuine issue of material fact that Defendant intentionally discriminated against him on account of his race with regard to these remaining claims, the court determines that Defendant is entitled to judgment as a matter of law on these remaining claims.
Defendant has also moved for summary judgment on the grounds that, other than Plaintiff's claims arising from his termination, all his remaining claims are barred by the applicable statute of limitations. See Def. Mot. at 5. Because the court has determined that Defendant is entitled to judgment as a matter of law on these remaining claims, the court need not consider Defendant's argument. The court notes, however, that neither party cited to the court the proper limitations period governing an action brought pursuant to 42 U.S.C. § 1981, notwithstanding a very recent case from the United States Supreme Court directly on point. See Jones v. R.R. Donnelley Sons Co., 541 U.S. 369 (2004) (§ 1981 cause of action governed by federal "catch-all" four year statute of limitations where claim made possible by amendment to § 1981 contained in the Civil Rights Act of 1991 or other post-1990 Congressional enactment).
2. Plaintiff's Negligent Misrepresentation Claim
Under Texas law, the elements of a claim for negligent misrepresentation are: (1) the representation is made by a defendant in the course of its business, or in a transaction in which it has a pecuniary interest; (2) the defendant supplies false information for the guidance of others in their business; (3) the defendant did not exercise reasonable care or competence in obtaining or communicating the information; and (4) the plaintiff suffers pecuniary loss by relying on the representation. 5636 Alpha Road v. NCNB Texas Nat'l Bank, 879 F.Supp. 655, 664 (N.D. Tex. 1995) (citing Federal Land Bank Ass'n v. Sloane, 825 S.W.2d 439, 442 (Tex. 1991)).
In support of his claim for negligent misrepresentation, Plaintiff stated in deposition that the false representation by Defendant was that he had sexually harassed another employee, and that he relied upon that statement by telling Woolis that he did not sexually harass anyone. Pl. App. at 96. Other than telling his supervisors that the allegations were untrue, Plaintiff presents no evidence that he relied on the representation or suffered a pecuniary loss thereby. Frankly speaking, what Plaintiff has alleged does not fit or fall within the category of a negligent misrepresentation claim under state law. Accordingly, entry of judgment in favor of Lynn Smith is appropriate with regard to Plaintiff's claim of negligent misrepresentation. III. Plaintiff's Motion for Leave to Amend Pleadings
On February 7, 2005, Plaintiff filed a Motion for Leave to Amend Pleadings under Fed.R.Civ.P. 15(a). In his motion, Plaintiff seeks to amend his Complaint solely to assert a claim that Defendant's alleged discrimination was continuous. Pl. Mot. to Amend at 1. Under the court's scheduling order dated April 19, 2004, the deadline to amend pleadings expired on July 16, 2004. See Scheduling Order, April 19, 2004. Plaintiff filed his motion for leave to amend on February 7, 2005, almost seven months after the expiration of the amendment of pleadings deadline. Before the court can modify the scheduling order and grant leave to amend under Fed.R.Civ.P. 15(a), Plaintiff must first show "good cause" for failure to meet the scheduling order deadline. Fed.R.Civ.P. 16(b). See SW Enters, L.L.C. v. Southwest Bank of Alabama, 315 F.3d 533, 536 (5th Cir. 2003) ("Rule 16(b) governs amendment of the pleadings.").
Rule 16(b) provides that a scheduling order "shall not be modified except upon a showing of good cause and by leave of the district judge." Fed.R.Civ.P. 16(b). The good cause standard requires the "party seeking relief to show that the deadlines [could not] reasonably be met despite the diligence of the party needing the extension." SW Enters, L.L.C., 315 F.3d at 535 (citation omitted). "Only upon the movant's demonstration of good cause to modify the scheduling order will the more liberal standard of Rule 15(a) apply to the district court's decision to grant or deny leave." Id. at 536. In deciding whether to allow an untimely amendment, a court is to consider "(1) the explanation for the failure to timely move for leave to amend; (2) the importance of the amendment; (3) potential prejudice in allowing the amendment; and (4) the availability of a continuance to cure such prejudice." Id. (internal quotation marks, brackets and citations omitted).
Considering these four factors, the court determines that the first two factors weigh against Plaintiff and the third and fourth factors are neutral. Regarding the first factor, the court notes that Plaintiff has failed to provide any explanation whatsoever for his failure to timely amend by the July 16, 2004 deadline. With respect to the second factor, the importance of the amendment, the court concludes that given its ruling on Defendant's Motion for Summary Judgement as set forth herein, the amendment is unimportant. To reiterate, Plaintiff seeks to amend his Complaint solely to assert a claim that Defendant's alleged discrimination was continuous. Pl. Mot. to Amend at 1. The continuing violation theory "relieves a plaintiff of establishing that all of the complained-of conduct occurred with the actionable period if the plaintiff can show a series of related acts, one or more of which falls within the limitations period." Celestine v. Petroleos de Venezuela SA, 130 F.3d 343, 351 (5th Cir. 2001) (citation omitted). In its ruling as set forth herein, the court is denying that portion of Defendant's motion for summary judgment related to Plaintiff's claim that his termination violated § 1981, and granting Defendant's motion with respect to all remaining claims asserted by Plaintiff. With regard to Plaintiff's termination claim, Defendant has conceded that this claim was timely filed. See Def. Mot. at 1, 5. Thus, the continuing violation theory is unnecessary in this case, as no claims remain that arguably occurred outside the applicable statute of limitations. The third factor, potential prejudice, does not weigh in favor of either party. As just stated, the continuing violation theory has no possible application in this case following the court's entry of this order. Finally, with respect to the fourth factor, the availability of a continuance to cure prejudice, the court determines that this factor similarly does not come into play, as the continuing violation theory has no application to this case. Accordingly, the court denies Plaintiff's Motion for Leave to Amend Pleadings. IV. Plaintiff's Motion to Strike Portions of Defendant's Summary Judgment Evidence
Plaintiff has filed a Motion to Strike Portions of Defendant's Summary Judgment Evidence on the grounds that portions of Defendant's evidence contain inadmissible hearsay and are not based on the personal knowledge of the declarant. The court previously set forth the evidentiary standard upon which it relied in determining Defendant's Motion for Summary Judgment. See supra at 3-4. The court did not consider any evidence that did not meet this standard. In other words, evidence that did not fall within this standard was not considered and played no role in this decision. Accordingly, the court denies Plaintiff's Motion to Strike Portions of Defendant's Summary Judgment Evidence.
V. Conclusion
For the reasons herein stated, the court determines that Plaintiff has raised a genuine issue of material fact with respect to whether his termination was based on race in violation of 42 U.S.C. § 1981, but not with regard to the remainder of his § 1981 claims and his negligent misrepresentation claim. Accordingly, the court denies in part and grants in part Defendant's Motion for Summary Judgment, denying that portion of Defendant's motion related to Plaintiff's claim that his termination violated § 1981, and granting Defendant's motion with respect to all remaining claims asserted by Plaintiff; and dismisses with prejudice all claims other than Plaintiff's claim that his termination violated § 1981. Further, the court denies Plaintiff's Motion for Leave to Amend Pleadings and denies Plaintiff's Motion to Strike Portions of Defendant's Summary Judgment Evidence.
The court is disappointed by the briefing of both parties in this case. Both parties have cited to the court the wrong legal standard for establishing a prima facie case under 42 U.S.C. § 1981 ( see supra at 5-6), and the wrong statute of limitations applicable to Plaintiff's § 1981 claims. See supra at 14, n. 6. Additionally, Plaintiff's filings contain erroneous page citations to the appendix, incomplete sentences, and numerous other grammatical errors. Moreover, Plaintiff's appendix initially had pages and exhibits missing. When Plaintiff's counsel was contacted by the court's law clerk, rather than seek to remedy the problem expeditiously, she sought to delay the court's receipt of the missing pages until the law clerk directed her to file a complete appendix by 10 a.m. on the following morning. Matters of this nature unnecessarily require the court to expend more time and consume scarce judicial resources. Having said this, the court expects this admonition to minimize recurrence of such matters in the future.
The court will issue a separate order amending the parties' deadline for submitting pretrial materials and resetting the date for the pretrial conference and trial of this case. The parties are hereby on notice that the court plans to try this action either during the week beginning April 18, 2005, or the week beginning April 25, 2005.