Jones v. FJC Sec. Servs., Inc.

• Decision Date: 19 August 2014
• Docket Number: Civil Action No. H–12–3688.
• Citation: 40 F.Supp.3d 840
• Parties: Latia M. JONES, Pro Se Plaintiff, v. FJC SECURITY SERVICES, INC., Defendant.
• Court: U.S. District Court — Southern District of Texas

40 F.Supp.3d 840

Latia M. JONES, Pro Se Plaintiff,
v.
FJC SECURITY SERVICES, INC., Defendant.

Civil Action No. H–12–3688.

United States District Court, S.D. Texas, Houston Division.

Signed Aug. 19, 2014

Motion granted.

[40 F.Supp.3d 845]

Latia M. Jones, Houston, TX, pro se.

Linda P. Wills, Wilson Elser et al., Meghan Kathleen Nance, Welsh LeBlanc LLC, Houston, TX, for Defendant.

OPINION AND ORDER
MELINDA HARMON, District Judge.

Pending before the Court in the above referenced cause alleging racial and gender discrimination in Defendant FJC Security Services, Inc.'s (“FJC's”) failure to provide a full-time position, failure to promote, and wrongful termination, retaliation, and a hostile work environment under Title VII of the Civil Rights Act of 1965, as amended, 42 U.S.C. § 2000e et seq., is FJC's motion for summary judgment (instrument # 27). Pro se Plaintiff Latia M. Jones (“Jones”) has failed to file a response.

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 find in favor of the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (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, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Lujan v. National Wildlife Federation, 497 U.S. 871, 885, 110 S.Ct. 3177, 111 L.Ed.2d 695 (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). 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

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concerning every element of its cause(s) of action. Morris v. Covan World Wide Moving, Inc., 144 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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (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, 106 S.Ct. 2505. 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.1982), 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, 106 S.Ct. 2548, and Liberty Lobby, 477 U.S. at 249–50, 106 S.Ct. 2505.

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.1994) (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. Westowne Assoc., 929 F.2d 160, 164 (5th Cir.1991). The nonmovant must “go beyond the pleadings and by [his] own affidavits, or by depositions, answers to interrogatories and admissions on file, designate specific facts showing that there is a genuine issue of material fact for trial.” Giles v. General Elec. Co., 245 F.3d 474, 493 (5th Cir.2001), citing Celotex, 477 U.S. at 324, 106 S.Ct. 2548.

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, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); National Ass'n of Gov't Employees v. City Pub. Serv. Board, 40 F.3d at 712–13.

It is well established in the Fifth Circuit that “[a] federal court may not grant a ‘default’ summary judgment where no response has been filed.” Bradley v. Chevron U.S.A., Inc., No. Civ. A. 204CV092J, 2004 WL 2847463, *1 (N.D.Tex. Dec. 10, 2004), citing Eversley v. MBank of Dallas, 843 F.2d 172, 174 (5th Cir.1988); Hibernia Nat. Bank v. Administracion Cent. Sociedad Anonima, 776 F.2d 1277, 1279 (5th Cir.1985). Nevertheless, if no response to the motion for summary judgment has been filed, the court may find as undisputed the statement of facts in the motion for summary judgment. Id. at *1 and n. 2, citing id.; see also Thompson v. Eason, 258 F.Supp.2d 508, 515 (N.D.Tex.2003) (where no opposition is filed, the nonmovant's unsworn pleadings are not competent summary judgment evidence and movant's evidence may be accepted as undisputed). See also UNUM Life Ins. Co. of America v. Long, 227 F.Supp.2d 609 (N.D.Tex.2002) (“Although the court may not enter a ‘default’ summary judgment, it may accept evidence submitted by [movant] as undisputed.”); Bookman v. Shubzda, 945 F.Supp. 999, 1002 (N.D.Tex.1996) (“A summary

[40 F.Supp.3d 847]

judgment nonmovant who does not respond to the motion is relegated to [his] unsworn pleadings, which do not constitute summary judgment evidence.”).

Allegations of the Original Complaint (# 1)

Jones is a black African American female, who states that she was rehired by FJC in February 2010, when Mark Machi, President of Federal Services FJC, promised Plaintiff a full-time job and the right to choose her work location. Instead Captain Albert Johnson (“Johnson”) of FJC assigned her to work nights in a location that was isolated from other employees and told her that “[i]t was Management's Decision.” Afraid she might lose her job if she protested, she accepted the assignment. Then on April 9, 2010 she was laid off. There were no daytime openings at that location, so Jones contacted FJC's Project Manager, Greg, who told her that Johnson would take care of her. Johnson contacted Jones and reassigned her to another location, again secluded from other employees and in scorching heat. When she asked for a better assignment, Johnson removed her from the work schedule so she had no hours of work. When she asked him for work, he told her that there was no work for her.

Jones claims that during this time two male employees of FJC received complaints from their client and the client asked that the employees be removed from the client's site, but they were not terminated for violating company policy nor in fear of losing a client. Instead the two were re-assigned to other positions in the FJC. Jones claims that positions were available for her to work, but that she was repeatedly told there was no available work for her. She contends that female employees were treated differently than their male counterparts with regard to discipline and termination.

Jones then filed a grievance with her labor union, the United Government Security Officers of America Local 237, complaining of the lack of full-time hours, which she claims had been guaranteed to her by Machi at the time of her hiring. Her grievance purportedly was ignored and discarded at the local and international levels. She filed a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”) on July 10, 2010, and a determination was rendered on September 19, 2012. Since she filed the charge of discrimination, she alleges that “countless and unexplained disciplinary actions have been taken against” her by Johnson without just cause. She asserts that she is continuously being “denied benefits and forced to accept unpaid wages.”

Applicable 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 disparate impact. International Brotherhood of Teamsters v. United States, 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977); Pacheco v. Mineta, 448 F.3d 783, 787 (5th Cir.2006), cert. denied, 549 U.S. 888, 127 S.Ct. 299, 166 L.Ed.2d 154 (2006). Title VII expressly prohibits both (1) intentional discrimination based on...