Opinion
NO. 4:01-CV-0899-A
September 18, 2002
MEMORANDUM OPINION and ORDER
Came on for consideration the motion of defendant, Conseco Finance Corporation, for summary judgment. The court, having considered the motion, the response of plaintiff, Ray Williams, Jr., the reply, the record, the summary judgment evidence, and applicable authorities, finds that the motion should be granted.
I. Plaintiff's Claims
On November 14, 2001, plaintiff filed his complaint in this action. He alleges that while he was employed by defendant, he was discriminated against because of his race. Specifically, he alleges that he was subject to disparate treatment, that defendant maintained a racially hostile and unbearable work environment, and that defendant terminated plaintiff based on his race. His claims are asserted under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e to 2000e-17.
II. Grounds of the Motion
Defendant urges three grounds in support of its motion for summary judgment. First, defendant was never plaintiff's employer. Second, plaintiff's claims are barred because he did not timely file his complaint in this action. And, third, plaintiff cannot establish that the reason given for his discharge is mere pretext for discrimination.
III. Objections and Motion to Strike
On September 16, 2002, defendant filed objections and a motion to strike plaintiff's summary judgment evidence. In accordance with its custom, the court is denying the motion to strike and will give the summary judgment evidence whatever weight, if any, it may deserve.
IV.
Applicable Summary Judgment Principles
A party is entitled to summary judgment on all or any part of a claim as to which there is no genuine issue of material fact and as to which the moving party is entitled to judgment as a matter of law. FED. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). The moving party has the initial burden of showing that there is no genuine issue of material fact. Anderson, 477 U.S. at 256. The movant may discharge this burden by pointing out the absence of evidence to support one or more essential elements of the non-moving party's claim "since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex Corp. v. Catrett, 477 U.S. 317, 323-25 (1986). Once the moving party has carried its burden under Rule 56(c), the non-moving party must do more than merely show that there is some metaphysical doubt as to the material facts. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The party opposing the motion may not rest on mere allegations or denials of pleading, but must set forth specific facts showing a genuine issue for trial. Anderson, 477 U.S. at 248, 256. To meet this burden, the nonmovant must "identify specific evidence in the record and articulate the 'precise manner' in which that evidence support[s] [its] claim[s]." Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994). An issue is material only if its resolution could affect the outcome of the action. Anderson, 477 U.S. at 248. Unsupported allegations, conclusory in nature, are insufficient to defeat a proper motion for summary judgment. Simmons v. Lyons, 746 F.2d 265, 269 (5th Cir. 1984)
The standard for granting a summary judgment is the same as the standard for a directed verdict. Celotex Corp., 477 U.S. at 323. If the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial. Matsushita, 475 U.S. at 597.
V. Undisputed Evidence
The following is an overview of evidence pertinent to the motion for summary judgment that is undisputed in the summary judgment record:
Defendant is the parent corporation of Conseco Finance Servicing Corporation ("CFSC"). CFSC is a residential mortgage company. Gary Schellcrosslee ("Schellcrosslee") was the manager of CFSC's Fort Worth office. On October 4, 1999, Schellcrosslee interviewed plaintiff and offered him a job. Plaintiff was one of the first individuals hired to work in the Fort Worth office and started working there when the office opened. Plaintiff was hired as a loan originator who was responsible for locating and obtaining information from prospective customers and insuring that loan applications were completed fully.
Between 1995 and 1999, plaintiff worked for six different employers, his jobs lasting from five months to thirteen months. Throughout his life, he has "job hopped." Def.'s App. at 7. He has had disagreements with supervisors because of being "outspoken and straightout forward with individuals." Id. at 11. His goal is to be self-employed.
Plaintiff knew that he was expected to close $250,000 in loans each month. In December 1999, Schellcrosslee cautioned him and other loan originators that their performance was unacceptable and that he would have to make an example of one or more of them by terminating them if performance did not improve. On January 7, 2000, Schellcrosslee told plaintiff that his employment was terminated. Schelicrosslee told plaintiff that he did not think plaintiff could do the job. During the time that plaintiff worked as a loan originator for CFSC, he did not close a single loan. By April 20, 2000, the seven loan originators who had worked in the same office as plaintiff in 1999 had left the company.
On January 21, 2000, plaintiff filed an administrative charge of discrimination with the EEOC naming "Conseco Financing Services" and CFSC as the employer who discriminated against him. Def.'s App. at 61. On August 9, 2001, the EEOC issued its notice of right to sue letter. Plaintiff believes he received the letter three or four days later. Plaintiff filed his complaint on November 14, 2001, more than ninety days after his receipt of the notice of right to sue letter.
VI. The Deemed Admissions
The undisputed summary judgment evidence further establishes that: On April 9, 2002, defendant served requests for admissions pursuant to Rule 36 of the Federal Rules of Civil Procedure. Because the requests were served by mail, plaintiff's responses were due May 13, 2002. On May 13, 2002, plaintiff's counsel attempted to mail plaintiff's responses, but failed to attach sufficient postage. The responses were returned to her and on May 16, 2002, she properly mailed them with sufficient postage attached. No request has been made for relief from the deemed admissions.
Pursuant to Rule 36, each matter of which an admission is requested is deemed admitted unless, within 30 days after service of the request, the party to whom the request is directed serves upon the other a written answer or objection addressed to the matter. Service may be made by mailing the responses to the last known address of the person served and service by mail is complete on mailing. FED. R. Civ. P. 5(b)(2)(B). Implicit in the authorization for service by mailing is the requirement that sufficient postage be attached. Cf. Magnuson v. Video Yesteryear, 85 F.3d 1424, 1430-31 (9th Cir. 1996); Recreational Props., Inc. v. Southwest Mortgage Serv. Corp., 804 F.2d 311, 314-15 (5th Cir. 1986). Because plaintiff admittedly did not timely serve his responses, each of the matters set forth by defendant is deemed admitted. These admissions eviscerate plaintiff's case. However, defendant does not solely rely on the deemed admissions to establish its right to summary judgment. Because the court might well have set aside the deemed admissions had it been requested to do so, the court has evaluated the summary judgment evidence without considering the admissions. And, as discussed hereinafter, the court has concluded that defendant is entitled to judgment as a matter of law without giving any consideration to the deemed admissions.
VII. Law Applied to the Facts
A. Plaintiff Has Sued the Wrong Entity.
The summary judgment evidence establishes that CFSC, and not defendant, was plaintiff's employer. Plaintiff does not deny that the two are separate entities. Instead, he argues that they should be treated as one. To do so, he must establish (1) an interrelation of operations, (2) centralized control of labor relations, (3) common management, and (4) common ownership or financial control. Garcia v. Elf Atochem N. Am., 28 F.3d 446, 450 (5th Cir. 1994), abrogated on other grounds, Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998). That one company is a wholly owned subsidiary of another is insufficient to establish that they should be treated as a single employer. Id. There is a strong presumption that a parent corporation is not the employer of its subsidiary's employees. Lusk v. Foxmeyer Health Corp., 129 F.3d 773, 777 (5th Cir. 1997). Only evidence of control suggesting a significant departure from the ordinary relationship between parent and subsidiary, i.e., domination similar to that which justifies piercing the corporate veil, is sufficient to rebut the presumption. Id. The fact that the legal department of a parent corporation handles a plaintiff's EEOC charge and subsequent lawsuit is insufficient to overcome the presumption. Skidmore v. Precision Printing Packaging, Inc., 188 F.3d 606, 617 (5th Cir. 1999) And, plaintiff's reliance on a handbook he was given when he was employed is no more persuasive. The handbook merely states that it establishes policies for defendant and its subsidiaries. Plaintiff cites no evidence on the issue most important to determining whether defendant and CFSC should be considered a single entity, to wit: which entity made the final decisions regarding plaintiff's employment. See Vance v. Union Planters Corp., 279 F.3d 295, 301 (5th Cir. 2002). Thus, he has not raised a genuine fact issue as to defendant's liability as an employer.
This is established without considering the deemed admissions.
B. Timeliness of the Complaint.
The summary judgment evidence establishes that the EEOC issued its notice of right to sue on August 9, 2001, and that plaintiff thinks he received it three or four days later. In his summary judgment response, plaintiff says that he informed his attorney he received the letter "almost a week" after the August 9, 2001, date. PI.'s Resp. at 7. He does not cite any summary judgment evidence to support that contention. And, as defendant notes, even if the letter was received on August 15, 2001, November 13, 2001, would have been the last day to timely file plaintiff's complaint. 42 U.S.C. § 2000e-5(f)(1); Maddox v. Runyon, 139 F.3d 1017, 1021 (5th Cir. 1998). Because the precondition to the filing of suit was not met, dismissal is appropriate. Maddox, 139 F.3d at 1021; Dao v. Auchan Hypermarket, 96 F.3d 787, 789 (5th Cir. 1996)
C. Whether Plaintiff Can Establish a Genuine Fact Issue as to Discrimination
Defendant appears to concede that, assuming plaintiff had timely filed this action against the proper defendant, he could state a prima facie case of discrimination at least as to his termination. That is, plaintiff, a member of a protected class, was terminated and replaced by someone outside his protected class. See Mayberry v. Vought Aircraft Co., 55 F.3d 1086, 1090 (5th Cir. 1995). Defendant does contend that plaintiff cannot demonstrate that the articulated reason for his termination- -his failure to close loans — was merely pretext for unlawful discrimination. See Rubinstein v. Adm'rs of the Tulane Educ. Fund, 218 F.3d 392, 399 (5th Cir. 2000). Indeed, plaintiff can point to nothing more than speculation to support his claim of discrimination in any respect. In his deposition, plaintiff gave any number of excuses for his deficient performance, for example, that Schellcrosslee was a poor manager and was inexperienced, that the Fort Worth office lacked computers, that another office was given better leads, and that plaintiff was given inferior leads compared to others. Plaintiff does not dispute that he never closed any loans and in fact had had possibly only one loan "in the pipeline" when he was fired. Plaintiff's contention that others were given better leads is wholly speculative. Further, there is no evidence that giving more favorable leads to certain employees would give rise to a claim under Title VII. Title VII is designed only to address ultimate employment decisions and the Fifth Circuit analyzes that element in a stricter sense than other circuits. Burger v. cent. 168 F.3d 875, 878 (5th Cir. 1999)
Plaintiff additionally relies on a comment allegedly made by Schellcrosslee that he had observed, while employed in Florida, that potential customers would tend to gravitate toward sales personnel in the same demographic group, that whites would go to whites and blacks would go to blacks. Even if the comment was made, plaintiff fails to explain how it relates to his discharge. There is no evidence that the customers plaintiff's employer sought to target were not of the same race as he is. At worst, Schellcrosslee's remark is a stray remark that does not establish pretext for discrimination. See Rubinstein, 218 F.3d at 401; Krystek v. Univ. of S. Miss., 164 F.3d 251, 256 (5th Cir. 1999)
Plaintiff finally alludes to a six-month probationary period described in the handbook he was given when he was employed, suggesting that the handbook created a contract of employment. Absent clear and express language to the contrary, a handbook does not create contractual rights limiting an employer's right to terminate employees. Day Zimmermann, Inc. v. Hatridge, 831 S.W.2d 65, 69 (Tex.App. — Texarkana 1992, writ denied). In this case, the handbook specifically states that it is not intended to create a contract of employment or for benefits and is intended only as an information source. Def.'s App. at 73.
Where, as here, the same actor who hires a person discharges him, an inference of nondiscrimination arises. Nieto v. L H Packing Co., 108 F.3d 621, 634 (5th Cir. 1997); Brown v. CSC Logic, Inc., 82 F.3d 651, 658 (5th Cir. 1996). The inference is even stronger when the hiring decision was made only a few months before the decision to discharge. Smith v. Eguitrac Corp., 88 F. Supp.2d 727, 742 (S.D. Tex. 2000). Plaintiff has not raised a genuine fact issue to overcome the presumption.
Although plaintiff's complaint mentions disparate impact and racially hostile working environment, plaintiff has not come forward with any evidence to support such claims. See Mentor Says. Bank, FSB v. Vinson, 477 U.S. 57 (1986). Instead, the evidence shows that everything would have been just fine; i.e., plaintiff would never have thought to bring a Title VII claim, if only someone else had been fired before plaintiff or at the same time that he was terminated. See Def.'s App, at 32.
VIII. ORDER
For the reasons discussed herein,
The court ORDERS that defendant's motion to strike be, and is hereby, denied, and that defendant's motion for summary judgment be, and is hereby, granted; that plaintiff take nothing on his claims against defendant; and that such claims be, and are hereby, dismissed with prejudice.