Agoh v. Hyatt Corp., CIVIL ACTION NO. H-12-1398

CourtUnited States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
Writing for the CourtMELINDA HARMON
Decision Date10 January 2014
Docket NumberCIVIL ACTION NO. H-12-1398

PETER AGOH, Plaintiff,



Dated: January 10, 2014


Pending before the Court in the above referenced cause, alleging racial and age discrimination in employment ending in Plaintiff Peter Agoh's termination, grounded in Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., and the Texas Commission on Human Rights Act ("TCHRA"), Texas Labor Code, § 21.051, et seq., and 42 U.S.C. §§ 1983 and 1985, is (1) Defendant Hyatt Corporation's ("Hyatt's") motion for summary judgment (instrument #7).

Standard of Review

Summary judgment under Federal Rule of Civil Procedure 56(c) is appropriate when, viewing the evidence in the light most favorable to the nonmovant, the court determines that "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, 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." A dispute of material fact is "genuine" if the evidence would allow a reasonable jury to

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find in favor of the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Initially the movant bears the burden of identifying those portions of the pleadings and discovery in the record that it finds demonstrate the absence of a genuine issue of material fact on which movant bears the burden of proof at trial; 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 (1986); Lujan v. National Wildlife Federation, 497 U.S. 871, 885 (1990); Edwards v. Your Credit, Inc., 148 F.3d 427, 431 (5th Cir. 1998).

If the movant meets its burden and points out an absence of evidence to prove an essential element of the nonmovant's case on which the nonmovant bears the burden of proof at trial, the nonmovant must then present competent summary judgment evidence to support the essential elements of its claim and to demonstrate that there is a genuine issue of material fact for trial. National Ass'n of Gov't Employees v. City Pub. Serv. Board, 40 F.3d 698, 712 (5th Cir. 1994). "[A] complete failure of proof concerning an essential element of the nonmoving party's case renders all other facts immaterial." Celotex, 477 U.S. at 323. The nonmovant may not rely merely on allegations, denials in a pleading or unsubstantiated assertions that a fact issue exists, but must set forth specific facts showing the existence of a genuine issue of material fact concerning every element of its cause(s) of action. Morris v. Covan World Wide Moving, Inc., 144

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F.3d 377, 380 (5th Cir. 1998). Conclusory allegations unsupported by evidence will not preclude summary judgment. National Ass'n of Gov't Employees v. City Pub. Serv. Board, 40 F.3d at 713; Eason v. Thaler, 73 F.3d 1322, 1325 (5th Cir. 1996). "'[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment . . . .'" State Farm Life Ins. Co. v. Gutterman, 896 F.2d 116, 118 (5th Cir. 1990), quoting Anderson v. Liberty Lobby, Inc.. 477 U.S. 242, 247-48 (1986). "Nor is the 'mere scintilla of evidence' sufficient; 'there must be evidence on which the jury could reasonably find for the plaintiff.'" Id., quoting Liberty Lobby, 477 U.S. at 252. The Fifth Circuit requires the nonmovant to submit "'significant probative evidence.'" Id., quoting In re Municipal Bond Reporting Antitrust Litig., 672 F.2d 436, 440 (5th Cir. 1978), and citing Fischbach & Moore, Inc. v. Cajun Electric Power Co-Op., 799 F.2d 194, 197 (5th Cir. 1986). "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Thomas v. Barton Lodge II, Ltd., 174 F.3d 636, 644 (5th Cir. 1999), citing Celotex, 477 U.S. at 322, and Liberty Lobby, 477 U.S. at 249-50.

The court must consider all evidence and draw all inferences from the factual record in the light most favorable to the nonmovant. Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986); National Ass'n of Gov't Employees v. City Pub. Serv. Board, 40 F.3d at 712-13.

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Allegations in Plaintiff's Complaint (#1)

In a brief, bare-bones complaint, Plaintiff Peter Agoh ("Plaintiff" or "Agoh"), an African American male over forty years of age at relevant times, was employed by Hyatt for more than thirty years, from December 15, 1980 until February 4, 2011, when he alleges that he was wrongfully terminated by Hyatt based on fabricated excuses, i.e., his failure to complete an assigned task timely, his lack of production, and his failure to meet with his direct supervisor, Linda Thiem, on January 31, 2011 when he claims he was ill. He maintains that these reasons were pretextual and that he was actually terminated because of his race and age. He represents that at different times General Manager Steve Trent and Controller Rico Espinelli commented to him that he should retire so that younger employees could be hired. Plaintiff also asserts that contrary to Hyatt's written policies, they failed to provide him with a written notice of his purported failures.

After Plaintiff was terminated, his replacements were not black, not African, younger than he, and less experienced and qualified than he was, and some were not members of his protected classes. He conclusorily asserts that Hyatt by and through its agents, treated him differently than its other employees who were not of African descent or black or who were younger than he was. He charges that Hyatt intentionally discriminated against him with malice or reckless indifference1 and deprived him of any

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employment opportunity with respect to compensation and the terms, conditions, and privileges of employment, based on his race and age. Hyatt allegedly "recruited several employees to pursue a course of conduct to cause Plaintiff to voluntarily resign" or "to trump up fallacious reasons in order to discharge" him. Their harassment included "overly picky criticism and disparagement" of his work performance. His termination by Hyatt's supervisors was "malicious, oppressive, or in reckless disregard of his rights." He seeks actual damages (including back and future pay and pension benefits, sick leave, and vacation time), punitive damages, pre-and post-judgment interest, attorney's fees, and costs.

Relevant Law

Under section 703(a) of Title VII, 42 U.S.C. § 2000e-2(a)(1), it is "an unlawful employment action for an employer . . . to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment because of such individual's race, color, religion, sex, or national origin."

Under the statute, suit may be brought under two distinct theories of discrimination, disparate treatment and

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disparate impact. International Brotherhood of Teamsters v. United States, 431 U.S. 324 (1977); Pacheco v. Mineta,448 F.3d 783, 787 (5th Cir. 2006), cert. denied, 549 U.S. 888 (2006). Title VII expressly prohibits both (1) intentional discrimination based on race, color, religion, sex or national origin, known as "disparate treatment," as well as (2) an employer's facially neutral practices that are discriminatory in operation against protected groups (race, color, religion, sex or national origin) and not required by the nature of the job, known as "disparate impact". 42 U.S.C. §§ 2000e-2(a)(1) and 2000e(k)(1)(A); Ricci v. DeStefano, 129 S. Ct. 2658, 2672-73 (2009); Pacheco, 448 F.3d at 787. The instant suit is one for disparate treatment, which requires proof of discriminatory motive. Pacheco, 448 F.3d at 787.

Before filing suit, a plaintiff bringing suit under Title VII must exhaust administrative remedies by filing a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") within 180 days of the unlawful act. 42 U.S.C. § 2000e-5(e)(1); Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 109 (2002); Huckaby v. Moore, 142 F.3d 233, 238 (5th Cir. 1998). Because Texas has an agency for receipt of civil rights complaints, i.e., the Texas Workforce Commission Civil Rights Division ("TWC"), and is therefore known as a "deferral state," Title VII expands the period to file a charge with the EEOC to 300 days if the complainant has filed a timely charge with state agency authorized to receive such within 180 days of the unlawful

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act. 42 U.S.C. § 2000e-5(e)(1).2 Failure to file a timely charge with the EEOC, which allows the agency to investigate and, if appropriate, negotiate a resolution with the employer, bars suit in federal court. McClain v. Lufkin Industries, Inc., 519 F.3d 264. 273 (5th Cir. 2008). After the complainant receives a right-to-sue letter from the EEOC, he must file suit within ninety days; the period is strictly construed unless the plaintiff alleges facts that might warrant equitable tolling, such as that he vigorously pursued his claim but missed...

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