Enguita v. Neoplan Usa Corp.

Decision Date07 July 2005
Docket NumberNo. Civ.A. B-04-121.,Civ.A. B-04-121.
Citation390 F.Supp.2d 616
PartiesDaniel ENGUITA, Plaintiff, v. NEOPLAN USA CORP., Defendant.
CourtU.S. District Court — Southern District of Texas

Carlos E. Hernandez, Jr., Law Offices of David Garcia, Edinburg, TX, Savannah L. Robinson, Attorney at Law, Danbury, TX, for Plaintiff.

Jeffrey Dale Roerig, Elizabeth G. Neally, Roerig Oliveira & Fisher, Brownsville, TX, for Defendant.

OPINION AND ORDER

TAGLE, District Judge.

BE IT REMEMBERED that on July 7, 2005, the Court GRANTED IN PART and DENIED IN PART defendant Neoplan USA Corporation's Motion for Summary Judgment. Dkt. No. 19.

I. Introduction

Daniel Enguita ("plaintiff"), a native of Spain and Texas domiciliary, was employed by the Neoplan USA Corporation ("defendant"), a Colorado corporation. In 2002, after approximately thirty-seven years of service, the defendant terminated the plaintiff's employment.

On June 21, 2004, the plaintiff sued the defendant in the 197th District Court of Cameron County, Texas. Dkt. No. 1 (Pl.'s Orig.Pet.). The complaint alleges that the defendant discharged the plaintiff on the basis of his national origin, disability, and age, in violation of the Texas Commission on Human Rights Act ("TCHRA"). See Tex.Lab.CodeAnn. § 21.051(1). The plaintiff additionally asserts a cause of action for retaliation. See id. at § 21.055. The complaint further lists actions under the corresponding sections of federal law, namely Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1), the Americans With Disabilities Act ("ADA"), 42 U.S.C. § 12112(a), and the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 623(a)(1). On July 15, 2004, defendant removed the plaintiff's case to federal court basing jurisdiction on diversity. Dkt. No. 1.

On February 28, 2005, defendant filed for summary judgment asserting the affirmative defense that all of the plaintiff's claims were time barred. Dkt. No. 19. The plaintiff submitted an opposing response on March 8, and defendant replied on March 16. Dkt. Nos. 20 & 21, respectively.

II. Standard of Review

Granting a motion for summary judgment is proper only where "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 the moving party is entitled to judgment as a matter of law." Fed.R.Civ.Pro. Rule 56(c). "The substantive law determines which facts are material." Kee v. City of Rowlett, 247 F.3d 206, 210 (5th Cir.2001). A genuine dispute about a material fact exists "`if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" In re Cooper/T. Smith, 929 F.2d 1073, 1076 (5th Cir.1991) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). "An issue is material if its resolution could affect the outcome of the action" under the governing law. Roberts v. Cardinal Services, Inc., 266 F.3d 368, 373 (5th Cir.2001); Anderson, 477 U.S. at 248, 106 S.Ct. 2505. In assessing whether a genuine issue of material fact exists, the Court views the evidence in the light most favorable to the non-moving party, here the plaintiff. BP Oil Intern., Ltd. v. Empresa Estatal Petroleos de Ecuador, 332 F.3d 333, 336 (5th Cir.2003).

To adequately motion for summary judgment, the moving party must inform the Court of the basis of its motion and demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Where, as here, "a defendant moves for summary judgment on the basis of an affirmative defense and, thus, bears the ultimate burden of persuasion, `it must adduce evidence to support each element of its defenses and demonstrate the lack of any genuine issue of material fact with regard thereto.'" Lottinger v. Shell Oil Co., 143 F.Supp.2d 743, 750 (S.D.Tex.2001) (Crone, J.) (quoting Rushing v. Kansas City S. Ry. Co., 185 F.3d 496, 505 (5th Cir.1999)). If the moving party meets its initial burden, the burden then "shifts to the nonmovant to set forth specific facts showing the existence of a genuine issue" of material fact. Racal Survey U.S.A., Inc. v. M/V COUNT FLEET, 231 F.3d 183, 187 (5th Cir.2000). The non-moving party "must present evidence sufficient to establish the existence of each element of his claim as to which he will have the burden of proof at trial." Pavone v. Mississippi Riverboat Amusement, Corp., 52 F.3d 560, 565 (5th Cir.1995).

III. Undisputed Facts

Upon completing high school in Spain, the plaintiff accepted employment with the defendant. Pl.'s Resp., Dkt. No. 20, Ex.4, ¶ 3. After jobs in Germany and South Africa, the plaintiff took a position with the defendant's Colorado, U.S.A.'s branch in 1982. Id.; Def. SJM, Dkt. No. 19, Ex.C, p. 2. "After being employed for sometime in Colorado," the plaintiff was eventually transferred to the defendant's plant in Brownsville, Texas. Pl.'s Resp., Dkt. No. 20, Ex.4, ¶ 3.

On April 24, 2002, the plaintiff received a letter from the defendant notifying him of the plant's upcoming closure on June 24. Id. at ¶ 5; Def. SJM, Dkt. No. 19, Ex.E-1. The letter specifically advised the plaintiff that his "last day of work will be June 24, 2002." Def. SJM, Dkt. No. 19, Ex.E-1. The letter also stated, "it is our hope that this plant can be re-opened in 12 to 18 months, depending on business conditions. However, there is no guarantee that this will happen." Id. Lastly, the plaintiff was informed, "We have arranged for a severance benefit for you." Id.

At the time it sent these letters, however, the defendant offered some of the Brownsville plant's employees positions elsewhere. Pl.'s Resp., Dkt. No. 20, Ex.4, ¶ 5. The plaintiff "believed that, because of [his] many years of service to the company, and because of conversations [he] had with management, that [he] would be offered work elsewhere." Id. After the plant's closure on the specified date, the plaintiff continued to receive his regular salary until September 1, 2002. Id. at ¶ 7. The plaintiff was then notified that his final payment would be made on September 13, 2002. Id.

On January 27, 2003, the plaintiff's attorney filed an intake questionnaire describing the defendant's alleged discriminatory acts with the Texas Commission of Human Rights ("TCHR"). Id. at Ex.1. The letter further requested that the "charge" be filed with the Equal Employment Opportunity Commission ("EEOC"). Id. Two days later, on January 29, the TCHR notified the plaintiff that it had received the "tendered document that constitutes an initial complaint...." Id. at Ex.2. The EEOC also received the plaintiff's complaint on January 29. Id. at Ex.3.

On May 15, 2003, the TCHR sent plaintiff a letter informing him that the "Commission will be unable to draft a charge on your behalf [because] more than thirty (30) days have elapsed since a draft complaint was mailed to you. To date, the Commission is not in receipt of your signed, notarized complaint." Def. SJM, Dkt. No. 19, Ex.D. On July 22, plaintiff filed a sworn complaint with the TCHR. Id. at Ex.B. The EEOC, on August 18, forwarded a "Notice of Charge of Discrimination" to the defendant. Pl.'s Resp., Dkt. No. 20, Ex.5.

IV. Discussion
A. TCHRA Claims

The defendant maintains that the plaintiff's TCHRA claims are untimely. The TCHRA provides a comprehensive administrative system for procuring relief from unlawful employment practices. Eckerdt v. Frostex Foods, Inc., 802 S.W.2d 70, 71 (Tex.App. — Austin 1990, no writ). Before seeking damages in Court, an employee must exhaust certain administrative remedies. Schroeder v. Texas Iron Works, Inc., 813 S.W.2d 483, 486 (Tex.1991). In particular, a complaint alleging employment discrimination must be filed with the TCHR or the EEOC "not later than the 180th day after the date the alleged unlawful employment practice occurred." Tex.Lab.CodeAnn. § 21.202(a); Specialty Retailers, Inc. v. DeMoranville, 933 S.W.2d 490, 492 (Tex.1996). The provision is "mandatory and exclusive and must be followed or the action is not maintainable because of a lack of jurisdiction." Green v. Aluminum Co. of Am., 760 S.W.2d 378, 380 (Tex.App. — Austin 1988, no writ). As such, the "statutory prerequisites for filing suit under the [TCHRA] are ... not capable of equitable modification." Bernard v. Browning-Ferris Indus., Inc., 1994 WL 575520, at *4 (Tex.App. — Houston [1st Dist.] 1994, no pet. h.); Guevara v. H.E. Butt Grocery Co., 82 S.W.3d 550 (Tex.App. — San Antonio 2002).

The defendant avers that the applicable date of termination was plaintiff's last day of employment at the factory, June 24, 2002. In support, the defendant provides answers to specific interrogatories where the plaintiff listed June 24, as his date of termination. Def. SJM, Dkt. No. 19, Ex.C. Defendant also produces a letter from its president addressed to the plaintiff dated April 24, 2002, stating that the plaintiff's "last day of work will be June 24, 2002." Id. at Ex.E-1. The plaintiff, on the other hand, generates his own affidavit asserting his belief that September 1, 2002, the date when the defendant ceased sending the plaintiff his regular paychecks, marks his date of termination. Pl.'s Resp., Dkt. No. 20, Ex.4, ¶¶ 5 & 7.

Texas courts, and indeed the Supreme Court of the United States, have held that the "limitations period begins when the employee is informed of the allegedly discriminatory employment decision, not when that decision comes to fruition." Specialty Retailers, Inc. v. DeMoranville, 933 S.W.2d 490, 493 (Tex.1996); Del. St. College v. Ricks, 449 U.S. 250, 259, 101 S.Ct. 498, 66 L.Ed.2d 431 (1980) (holding in Title VII case claiming discrimination based upon plaintiff's national origin that the applicable "limitations period commenced to run when the tenure decision was made and [plaintiff] was notified"). "Thus,...

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