Bleiweiss v. Panduit Sales Corp.
| Decision Date | 13 January 2015 |
| Docket Number | CIV. ACTION NO. H-13-0080 |
| Parties | FREDDIE BLEIWEISS, Plaintiff, v. PANDUIT SALES CORP., Defendant. |
| Court | U.S. District Court — Southern District of Texas |
Pending before the Court in the above referenced cause, removed from state court on diversity jurisdiction and alleging discriminatory termination of employment based on age and disability, in violation of § 21.051 of the Texas Labor Code,1 during a business reorganization is Defendant Panduit Sales Corp.'s ("Panduit's") motion for summary judgment (instrument #15).
After a careful review of the record and the applicable law, for the reasons stated below the Court concludes that Plaintiff Freddie Bleiweiss has failed to meet his burden of proof and that Panduit's motion should be granted.
Summary judgment under Federal Rule of Civil Procedure 56(c) is appropriate when, viewing the evidence in the light mostfavorable 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 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 the nonmovant 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 caserenders 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 F.3d 377, 380 (5th Cir. 1998).
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.
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 citingFischbach & 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.
Allegations in a plaintiff's complaint are not evidence. Wallace v. Texas Tech Univ., 80 F.3d 1042, 1047 (5th Cir. 1996)("[P]leadings are not summary judgment evidence."); Johnston v. City of Houston, Tex., 14 F.3d 1056, 1060 (5th Cir. 1995)(for the party opposing the motion for summary judgment, "only evidence--not argument, not facts in the complaint--will satisfy' the burden."), citing Solo Serve Corp. v. Westown Assoc., 929 F.2d 160, 164 (5th Cir. 1991).
Panduit employed Plaintiff for five years and nine months as a System Sales Engineer until he was terminated on September 30, 2011 while Panduit was undergoing a reorganization or reduction in force ("RIF"). In April 2011, Thomas Kean ("Kean"), a new Director of Sales hired from outside the company, announced a reorganization of the group of ten Sales Engineers, but represented that all their jobs would be safe. Nevertheless, Plaintiff and the only other Sales Engineer over the age of fifty, Michael Newman, were laid off. Furthermore, within a few weeks of Plaintiff's discharge, Panduit advertised for his position under a different title.
Plaintiff claims that Panduit knew that Plaintiff was being treated by a neurosurgeon for a problem with his back and hip. When Panduit switched the kind of company vehicles it provided to some employees from Trail Blazer SUVs to Ford Taurus sedans, the neurosurgeon wrote a letter2 to Panduit recommending that Plaintiff be allowed to keep his Trail Blazer to accommodate Plaintiff's disability because it provided easier access. Instead, Panduit took away the Taurus, but refused to give Plaintiff a different vehicle or a car allowance. 3 Plaintiff claims that later Kean was #1-3 at ¶ 5.3.
While Plaintiff and Kean traveled through Iowa and Nebraska on a business trip to visit customers, Kean commented on what he perceived to be a disability of Plaintiff, i.e., the way Plaintiff was moving and bending, and Kean repeatedly stated that he ran for exercise. Plaintiff responded that he wished he was still able to run. Plaintiff further felt compelled to tell Kean that one day Plaintiff would have surgery to relieve his problem. #17, Bleiweiss Affid., Ex. C. Another time Kean told Plaintiff to "back off the disability thing" because it was affecting his work. Id.
Plaintiff conclusorily asserts that age and disability were motivating factors in Panduit's decision to terminate him and that Panduit violated the Americans with Disabilities Act and the Age Discrimination in Employment Act.4
The Texas Commission on Human Rights Act ("TCHRA"), Section 21.051 of the Texas Labor Code, provides in relevant part, "An employer commits an unlawful employment practice if because of race, color, disability, religion, sex, national origin or age the employer . . . discharges an individual, or discriminates in any other manner against an individual in connection with compensation or the terms, conditions, or privileges of employment . . . ." Although Plaintiff's Original Petition states that he "does not assert any federal claims in this proceeding" (#1-3 at p.4), not only does his Original Petition (#1-3 at ¶ 5.5) state otherwise, but the Texas Legislature "intended to correlate state law with federal law in employment discrimination when it enacted theTCHRA." Wal-Mart Stores, Inc. v. Canchola, 121 S.W. 3d 735, 739 (Tex. 2003). Moreover, "[i]n discrimination cases that have not been fully tried on the merits, [Texas courts] apply the burden-shifting analysis established by the United States Supreme Court." Id., citing Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 142-43 (2000), and McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See also Gold v. Exxon Corp., 960 S.W.2d 378, 380 (Tex. App.--Houston [14th Dist.] 1998, no writ)(In enacting the TCHRA, the Texas Legislature intended to correlate "state law with federal law in the area of discrimination in employment"; thus the same burden-shifting framework used to analyze a case under the federal discrimination statutes applies under the Texas statute.).
The ADEA makes it "unlawful for an employer to fail or refuse to hire or to discharge or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." 19 U.S.C. § 623(a)(1).
Regarding age discrimination, the TCHRA is coextensive with the ADEA and claims are evaluated in the same analytic framework under both statutes. Evans v. City of Houston, 246 F.3d 344, (5th Cir. 2001), citing Bodenheimer v. PPG Indus. Inc., 5 F.3d 955, 957 (5th Cir. 1993); In re United Servs. Auto. Ass'n, 307 S.W. 3d 299, 308 (Tex. 2010). See also Murphy v. Uncle Ben's, Inc., 168 F.3d 734, 739 (5th Cir. 1999)("The purpose of the [TCHRA]is to coordinate and conform with federal law under Title VII and the ADEA," so the courts look to federal precedent in the absence of state decisional law), citing Caballero v. Cent. Power & Light Co., 858 S.W. 2d 359, 361 (Tex. 1993).
Because an RIF is a "legitimate, nondiscriminatory reason for discharge, the Fifth Circuit has...
To continue reading
Request your trial