United States District Court, S.D. Texas, Corpus Christi Division
ORDER ADOPTING MEMORANDUM AND RECOMMENDATION
GONZALES RAMOS UNITED STATES DISTRICT JUDGE.
before the Court is Defendant's Motion for Summary
Judgment (D.E. 27). On May 5, 2017, United States Magistrate
Judge Jason B. Libby issued a Memorandum and Recommendation
(M&R D.E. 41), recommending that Defendant's motion
be granted and that Plaintiff's action be dismissed.
Plaintiff timely filed his objections (D.E. 42) on May 18,
2017. Plaintiff presents five numbered objections, each of
which are addressed in the order presented.
Plaintiff objects to the M&R's analysis of
prejudicial statements as “stray remarks.” In
that regard, he cites two Fifth Circuit cases that support
the Magistrate Judge's analysis of the prejudicial
remarks, both of which were discussed in the M&R:
Auguster v. Vermilion Parish School Board, 249 F.3d
400, 404-05 (5th Cir. 2001) and Russell v. McKinney
Hospital Venture, 235 F.3d 219, 226 (5th Cir. 2000).
Auguster confirmed the continued viability of the
stray remarks doctrine and Russell showed that those
remarks, combined with other substantial evidence, could
overcome a defendant's evidence of a legitimate
nondiscriminatory reason for the adverse employment action.
the cases represent the two ends of the spectrum in which
prejudicial remarks are evaluated. Such remarks represent
some direct evidence to support a prima facie case and shift
the burden to the defendant to show a legitimate
nondiscriminatory reason for a termination. But whether the
remarks are sufficient to sustain a fact question after the
defendant submits its own evidence is a matter to be
evaluated on a case-by-case basis. Here, Plaintiff's
evidence of prejudicial remarks, even if found to be true,
are not enough to overcome Defendant's substantial and
uncontroverted evidence of excessive absences from work. As
applied, the M&R is correct in its analysis of the stray
takes his argument a step further and invites this Court to
abandon the stray remarks doctrine and hold that any remark,
regardless of when made, is sufficient to raise a fact
question of racial animus notwithstanding evidence of a
legitimate nondiscriminatory basis for the action. The Court
declines Plaintiff's invitation to usurp its authority in
the face of binding precedent of the Fifth Circuit.
Plaintiff's first objection is OVERRULED.
Plaintiff objects to the Magistrate Judge's treatment of
his statistical evidence. The M&R details the analytical
defects in the evidence, including a failure to demonstrate
which employees were Hispanic and which were not, the lack of
a demonstrated methodology for calculating the number of
Hispanics and Non-Hispanics hired from their respective pools
of applicants, and the omission of higher-paid Hispanic
employees' salaries when complaining that Hispanics on
the whole received lower pay. Plaintiff does not offer an
explanation that eliminates these infirmities.
Plaintiff asks the Court to accept the evidence as part of
indulging all justifiable inferences in favor of the
non-movant, citing Caboni v. General Motors Corp.,
278 F.3d 448, 451 (5th Cir. 2002). However,
The trial court may not enter a summary judgment which rests
on a chain of inferences from subsidiary facts not
conclusively established in the record. On a motion for
summary judgment neither we nor the trial courts are
permitted to weigh the evidence, pass upon credibility, or
“speculate as to ultimate findings of fact.”
Fortner Enterprises, Inc. v. United States Steel,
394 U.S. 495, 506, 89 S.Ct. 1252, 1260, 22 L.Ed.2d 495
Pepper & Tanner, Inc. v. Shamrock Broad., Inc.,
563 F.2d 391, 393 (9th Cir. 1977). “Justifiable
inferences” referenced in the Rule 56 standard of
review requires solid evidence from which to make those
inferences. The Court is not empowered to infer that
statistical evidence that is demonstrably infirm would
support the non-movant if performed with the scientific or
mathematical accuracy that type of evidence requires.
Plaintiff's second objection is OVERRULED.
while Plaintiff does not object to the M&R's
consideration of Rita Trojcak's affidavit at this time,
he asks for the opportunity to take her deposition in the
interest of justice and fairness because she was not
previously disclosed as a witness in discovery. Pursuant to
Federal Rule of Civil Procedure 26(a)(1)(A)(i), a party must
disclose a person with knowledge of facts likely to be
discoverable to support that party's claims or defenses.
The Court notes that Trojcak's affidavit was offered only
in reply to Plaintiff's summary judgment response, which
advanced issues that had not been previously pled. D.E. 33.
Thus it is questionable whether Defendant should have
anticipated the need for this witness as a subject of
disclosure under Rule 26.
the disclosure rule does not preclude the use of a witness
offered solely for purposes of impeachment. Rule
26(a)(1)(A)(i). Furthermore, as the M&R discusses,
noncompliance with discovery may be excused and the witness
permitted to testify under circumstances that are
substantially justified or harmless. D.E. 41, p. 10 n.5
(citing Keller v. Coastal Bend Coll., 629 F.
App'x 596, 598-599 (5th Cir. 2015)). Plaintiff does not
challenge this reasoning for considering Trojcak's
affidavit on summary judgment.
Plaintiff has not informed the Court of any reason that a
deposition of Ms. Trojcak is necessary. According to the
summary judgment rule:
(d) When Facts Are Unavailable to the Nonmovant.
If a nonmovant shows by affidavit or declaration that, for
specified reasons, it cannot present facts essential to