Udoewa v. Union

• Decision Date: 15 November 2010
• Docket Number: Civil Action No. H–08–3054.
• Citation: 754 F.Supp.2d 850
• Parties: Henry UDOEWA, Plaintiff,v.PLUS4 CREDIT UNION, et al., Defendants.
• Court: U.S. District Court — Southern District of Texas

754 F.Supp.2d 850

Henry UDOEWA, Plaintiff,

v.PLUS4 CREDIT UNION, et al., Defendants.

Civil Action No. H–08–3054.

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

Nov. 15, 2010.

Okon J. Usoro, Houston, TX, for Plaintiff.Dorian Leigh Bass, Terrence B. Robinson, Gordon and Rees LLP, Houston, TX, for Defendants.

MEMORANDUM AND OPINION

LEE H. ROSENTHAL, District Judge.

This is an employment discrimination case. Henry Udoewa sued his former employer, Plus4 Credit Union, and two of its officers: the president and chief executive officer, Vladimir Stark; and the executive vice-president, Patricia Collins. Udoewa is a black man born in Nigeria. He alleges that he was subjected to race and national origin discrimination, including a hostile work environment, and retaliated against, all in violation of 42 U.S.C. § 1981. ¹ He also asserts Texas common-law claims for negligent retention and defamation. Udoewa alleges that the defendants violated § 1981 by: (1) failing to promote him to the position of executive vice-president and instead promoting Collins, a Caucasian female; (2) removing his duties as vice-president of human resources and transferring those duties to Collins; (3) maintaining a racially hostile work environment; (4) retaliating against him for refusing to aid Plus4's investigation of discrimination claims filed by a former employee who, like Udoewa, was from Nigeria; and (5) firing him. Udoewa further alleges that Plus4 negligently hired and retained Stark. Finally, Udoewa alleges that Stark defamed him. After discovery, the defendants moved for summary judgment on all Udoewa's claims.² Based on a careful review of the pleadings; the motion, response, and reply; the record; and the applicable law, this court grants Plus4's motion for summary judgment.³ The reasons are explained in detail below.

I. The Summary Judgment Evidence ⁴

Plus4 is a Houston credit union. Originally, it was called the “Houston Postal Credit Union” because it served the financial needs of Houston's postal workers. It later expanded to a general clientele. Plus4 is controlled by a board of directors, but the president and chief executive officer, Vladimir Stark, manages Plus4's day-to-day operations in conjunction with the senior management team. Stark, the president and CEO, was born in Liberia. Although Udoewa's counsel asserts that Stark is not “black,” Stark clearly describes himself as black. (Docket Entry No. 109, Ex. W, Stark Affidavit II, ¶ 3). Other Plus4 employees and board members knew that Stark was from Africa and considered him to be black. (Docket Entry No. 100, Ex. 2, Collins Depo., 101; Ex. 1A, Udoewa Depo. II, 63).

Udoewa came to the United States in 1976 from Nigeria. He received a B.A. in Business Administration with an accounting concentration from Texas Southern University in 1980 and an M.B.A. from Prairie View A & M University in 1983. In April 2001, Stark hired Udoewa as an accounting supervisor.⁵ (Docket Entry No. 100, Udoewa Depo. Vol. I, 29–32); (Docket Entry No. 99, Ex. 6, Employee Evaluation Reports). Stark promoted Udoewa twice during the first two years of his employment at Plus4. On April 22, 2002, Stark promoted Udoewa to the position of accounting supervisor. On January 29, 2004, Stark promoted Udoewa to the position of vice-president of accounting, making him part of Plus4's senior management team. (Docket Entry No. 83, Ex. B, Stark Depo., 27–28).

From the start of his employment, Udoewa received high scores from Stark in regular employee-evaluation reports. Stark filled out all the reports. The evaluation reports included ten “performance criteria” scored on a ten-point scale to produce a combined score of 100 possible points.⁶ For April 17, 2001 to April 17, 2002, Udoewa received a combined score of 95; for April 17, 2002 to February 1, 2003, he received a combined score of 98.5; for February 1, 2003 through February 1, 2004, he received a combined score of 99; and for February 1, 2004 through January 31, 2005, he received a combined score of 100. Under Plus4's scoring system, these combined scores demonstrated “Excellent Performance.” (Docket Entry No. 99, Ex. 6, Employee Evaluation Reports).

Udoewa continued to receive more responsibilities at Plus4. On August 16, 2004, Stark made Udoewa responsible for overseeing Plus4's human resources department in addition to his responsibilities as vice-president of accounting. (Docket Entry No. 83, at 7); (Docket Entry No. 99, Ex. 8, Stark HR Memo). Stark wanted someone from senior management to oversee that department and Udoewa's responsibilities as vice-president of accounting overlapped with some of the human resources department functions, such as payroll. (Docket Entry No. 83, Ex. F, Stark Aff., ¶ 3). Udoewa's human resources department responsibilities were limited. They included overseeing Kimberly Mayfield, the department's director, who continued to handle day-to-day tasks. Udoewa was also responsible for submitting to Stark personnel evaluations and recommendations for hiring, firing, and transferring employees and for adjusting salaries. ( Id., Ex. B, Stark Depo., 36–37); (Docket Entry No. 100, Ex. 1A, Udoewa Depo. II, 136–37).

The parties dispute whether Stark gave Udoewa the title of “vice-president of human resources.” Stark testified that Udoewa's title remained only vice-president of accounting when he was given the additional human resources department responsibilities. (Docket Entry No. 83, Ex. B, Stark Depo., 36–37). Udoewa testified that he had the titles of both vice-president of accounting and vice-president of human resources. Udoewa points to minutes from a November 2007 Board of Directors meeting identifying him as “VP of Accounting and HR,” (Docket Entry No. 99, Ex. 9, November 2007 Minutes). Udoewa does not assert that his compensation depended on whether he had one or two vice-president titles.

After January 31, 2005, Plus4 changed its employee performance evaluation reports. Instead of the ten-point system for scoring ten performance criteria, the reports included a five-point scoring system using seven weighted “performance factors.” ⁷ Under the new system, Udoewa continued to receive high scores on the reports that Stark completed. For February 1, 2005 through January 31, 2006, Udoewa received a 5.0 out of 5.0; for February 1, 2006 through January 31, 2007, Udoewa received a 4.9 out of 5.0; and for February 2, 2007 through June 30, 2008, Udoewa received a 4.9 out of 5.0. Under the new scoring system, Udoewa was a “High Performer” for each period. ( Id., Ex. 6, Employee Evaluation Reports).

The new scoring system also measured “future goals” for each evaluation period. Like the performance factors, each future goal was worth five points. The total score was based on the number of points multiplied by a percentage weight assigned to each future goal. For example, for the period from February 1, 2006 to January 31, 2007, Udoewa's future goals included growing deposits by $20 million, weighted at 15%, and getting Plus4 named as a “best work place,” weighted at 5%. Udoewa's total “goal performance” score for this period was 2.6; his score for February 2, 2007 through June 30, 2008 was 2.55. While these scores were lower than the performance scores, they apparently did not lower his total “Performance Rating” from “High Performer.” ( Id.).

The record contains disputed evidence about two remarks made by Patricia Collins, a Caucasian female who was Plus4's vice president of collections from at least 1999 until her promotion to executive vice president in 2008. ⁸ Udoewa alleged that sometime in 2007, after he returned from a trip to Nigeria, Collins told him “that she wished the [United States] Department of Homeland Security would have refused [Udoewa] entry into the United States and keep [his] black ass in Black Africa.” ( Id., Ex. 37, Udoewa Aff., ¶ 12). Collins vigorously denies ever making such a statement. (Docket Entry No. 100, Ex. 2, Collins Depo., 98). Udoewa also stated in his affidavit that the chair of Plus4's Board of Directors, Ceaser Moore, stated during a April 2008 meeting with Stella Thompson, who was Plus4's human resources director at the time, that Udoewa was from the “bush part of Africa.” (Docket Entry No. 99, Ex. 37, Udoewa Aff., ¶ 12). In his deposition, Udoewa testified that Moore's entire statement was that Udoewa “came from the bush part of Africa while Mr. Stark came from the dictatorship [part] of Africa.” (Docket Entry No. 100, Ex. 1A, Udoewa Depo. II, 63). Moore testified that he does not remember making this statement. ( Id., Ex. 3A, Moore Depo., 191). Udoewa asserts that Moore made a similar statement on June 12, 2008. (Docket Entry No. 99, Ex. 37, Udoewa Aff., ¶ 13).

Udoewa stated in his affidavit that on September 4, 2007, he asked Stark to promote him to the position of executive vice-president. Udoewa stated that he approached Stark and requested this promotion. ( Id., ¶ 32). In his earlier deposition, however, Udoewa testified that on that date, he asked Stark about being promoted to the position of chief executive officer on Stark's retirement. (Docket Entry No. 100, Ex. 1 A, Udoewa Depo. II, 263–65). Udoewa testified in his deposition that Stark responded that he could not be promoted from his position as vice-president of accounting until Claudia Cruz, an accounting manager, received her bachelor's degree so that she could take Udoewa's place. A college degree was a requirement for the vice-president position. (Docket Entry No. 109, Ex. Z, Udoewa Depo. II, 263–65). Udoewa testified that he helped Cruz enroll in the necessary courses, but does not state whether she received her B.A. (Docket Entry No. 99, Ex. 37, Udoewa Aff., ¶ 32).

In May 2008, Stark promoted Collins to the position of executive vice-president. ( Id.). Udoewa believes that when Stark told him that he was waiting for Cruz to complete her degree to promote her to the vice-president of...