Opinion
Civil Action No. 2:98CV205-P-B
July 10, 2000
MEMORANDUM OPINION
This cause comes before the Court on defendant's Motion for Summary Judgment. The Court has duly considered the parties' memoranda and exhibits and is ready to rule.
FACTUAL BACKGROUND
Mary Lynn Bailey began working for Fitzgeralds Casino as a dealer in 1994. She worked there until on or about September 26, 1997 when Fitzgeralds terminated her for excessive absenteeism. Plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission on July 20, 1998 some 297 days after her termination. In her charge, plaintiff complained of discrimination on the basis of disability in violation of the Americans with Disabilities Act. On August 28, 1998, the EEOC dismissed her complaint for failure to file her claim in a timely manner.
Ms. Bailey subsequently filed the instant suit alleging that her termination violated not only the ADA, but also Title VII in that she was the victim of sex discrimination. Fitzgeralds answered, denying all liability. After adequate opportunity for discovery, Fitzgeralds moved for summary judgment on several grounds, including plaintiff's failure to include sex discrimination in her charge to the EEOC, as well as that of time bar. The Court has reviewed the parties' memoranda and accompanying exhibits and is ready to rule.
STANDARD OF REVIEW
The Federal Rules of Civil Procedure, Rule 56(c), authorizes summary judgment where "the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine dispute as to any material fact and that the moving party is entitled to judgment as a matter of law. Celotex Corporation v. Catrett, 477 U.S. 317, 322, 91 L.Ed.2d 265, 106 S.Ct. 2548 (1986). The existence of a material question of fact is itself a question of law that the district court is bound to consider before granting summary judgment. John v. State of La. (Bd. Of T. for State C. U., 757 F.2d 698, 712 (5th Cir. 1985).
A judge's function at the summary judgment stage is not himself to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial. There is no issue for trial unless there is sufficient evidence favoring the non-moving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 91 L.Ed.2d 202, 106 S.Ct. 2505 (1986).
Although Rule 56 is peculiarly adapted to the disposition of legal questions, it is not limited to that role. Professional Managers, Inc. v. Fawer, Brian, Hardy Zatzkis, 799 F.2d 218, 222 (5th Cir. 1986). "The mere existence of a disputed factual issue, therefore, does not foreclose summary judgment. The dispute must be genuine, and the facts must be material." Id. "With regard to `materiality', only those disputes over facts that might affect the outcome of the lawsuit under the governing substantive law will preclude summary judgment. Phillips Oil Company, v. OKC Corporation, 812 F.2d 265, 272 95th Cir. 1987). Where "the summary judgment evidence establishes that one of the essential elements of the plaintiff's cause of action does not exist as a matter of law, . . . all other contested issues of fact are rendered immaterial. See Celotex, 477 U.S. at 323, 106 S.Ct. at 2552. Topalian v. Ehrman, 954 F.2d 1125, 1138 (5th Cir. 1992).
In making its determinations of fact on a motion for summary judgment, the Court must view the evidence submitted by the parties in a light most favorable to the non-moving party. McPherson v. Rankin, 736 F.2d 175, 178 (5th Cir. 1984).
The moving party has the duty to demonstrate the lack of a genuine issue of material fact and the appropriateness of judgment as a matter of law to prevail on his motion. Union Planters Nat. Leasing v. Woods, 687 F.2d 117 (5th Cir. 1982). The movant accomplishes this by informing the court of the basis of its motion, and by identifying portions of the record which highlight the absence of genuine factual issues. Topalian, 954 F.2d at 1131.
"Rule 56 contemplates a shifting burden: the nonmovant is under no obligation to respond unless the movant discharges [its] initial burden of demonstrating [entitlement to summary judgment]." John, 757 F.2d at 708. "Summary judgment cannot be supported solely on the ground that [plaintiff] failed to respond to defendants' motion for summary judgment," even in light of a Local Rule of the court mandating such for failure to respond to an opposed motion. Id. at 709.
However, 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). In other words, "the 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). To defend against a proper summary judgment motion, one may not rely on mere denial of material facts nor on unsworn allegations in the pleadings or arguments and assertions in briefs or legal memoranda. The nonmoving party's response, by affidavit or otherwise, must set forth specific facts showing that there is a genuine issue for trial. Rule 56(e), Fed.R.Civ.P. See also Union Planters Nat. Leasing v. Woods, 687 F.2d at 119.
While generally "[t]he burden to discover a genuine issue of fact is not on [the] court, (Topalian, 954 F.2d at 1137), "Rule 56 does not distinguish between documents merely filed and those singled out by counsel for special attention the court must consider both before granting a summary judgment." John, 757 F.2d at 712, quoting Keiser v. Coliseum Properties, Inc., 614 F.2d 406, 410 (5th Cir. 1980).
LEGAL ANALYSIS A. Sex Discrimination Claim and State Law Claims
Defendant seeks summary judgment on both plaintiff's Title VII sex discrimination claim and any purported state law claims arguably raised by the Complaint. Fitzgeralds asserts that plaintiff's gender discrimination claim must fail as a result of her failure to allege sex discrimination in her EEOC charge. Duncan v. City of Dallas, Texas, 1997 WL 289090, 3:95-CV-0674-D (N.D.Tex. May 21, 1997). As to the state law claims, Fitzgeralds contends that plaintiff has not pleaded any viable state law claims, nor has discovery revealed any evidence in support of such claims. Plaintiff concedes Fitzgeralds' entitlement to summary judgment on both of these claims for the reasons articulated by defendant. Accordingly, the defendant's motion is well-taken as to these counts of plaintiff's Complaint.
B. ADA Claim
Defendant also seeks judgment as a matter of law on plaintiff's disability discrimination claim. The ADA requires that plaintiff meet the administrative exhaustion requirements specified under Title VII. 42 U.S.C. § 12117. Under Title VII, a statutory prerequisite to maintaining a civil action is the filing of a charge of discrimination with the EEOC within 180 days after the allegedly unlawful action. 42 U.S.C. § 2000e-5(e)(1). Where the unlawful practice occurred more than 180 days prior to the filing of a charge, the plaintiff's action is time barred and dismissal is appropriate. See Fussell v. Bellsouth Communications, 1998 WL 12229, Civil Action No. 96-1770 Section T(3)) (E.D.La. Jan. 9, 1998).
Plaintiff does not dispute the fact that her claim was brought more than 180 days following her termination. Instead, she offers merely an unsupported argument that she was entitled to the 300 day limitations period applicable for those who avail themselves of the claims process before state agencies recognized as deferral agencies under the federal discrimination statutes. See 42 U.S.C. § 2000e-5(e)(1) (". . . [I]n a case of an unlawful employment practice with respect to which the person aggrieved has initially instituted proceedings with a State or local agency with authority to grant or seek relief from such practice . . . such charge shall be filed . . . within three hundred days. . . ."). Bailey argues that her filing of an application for unemployment benefits with the Mississippi Employment Security Commission meets the necessary criteria for an extended filing period. Her argument is unavailing. Before a plaintiff can take advantage of the 300 day filing period for deferral states, a plaintiff must establish two elements:
1. The existence of a state or local law prohibiting the unlawful employment practice alleged; and
2. The statute must establish or authorize a state or local authority to grant or to seek relief from the allegedly unlawful practice.
White v. Dallas Indep. School Dist., 566 F.2d 906, 907-909 (5th Cir. 1978). Plaintiff cannot point to one iota of evidence which supports either element. Accordingly, the timeliness of plaintiff's EEOC charge is to be judged against the 180 day filing period. Bailey's claim is therefore time-barred Because she filed her EEOC complaint outside the statutory period. Defendant's motion for summary judgment is thus well-taken and should be granted.
CONCLUSION
Based on the foregoing facts and analysis, the Court finds that defendant's motion for summary judgment is well-taken. An order will issue accordingly.
THIS, the _______ day of July, 2000.