United States District Court, S.D. Texas, Galveston Division
MEMORANDUM ORDER AND OPINION
C. HANKS, JR., UNITED STATES DISTRICT JUDGE
Phillip David Haskett, filed this lawsuit on August 27, 2014,
against Defendants T.S. Dudley Land Company, Inc.;
"Unknown Clients of T.S. Dudley Land Company
#l-#9;" and "Jon Doughs [sic] #1- #9." (Dkt.
is a Texas resident who is representing himself in this
lawsuit pro se.This is one of a series of similar
lawsuits Haskett has filed in this Court, each alleging that
various Defendants unlawfully discriminated against him
because they failed to hire him because of his age. The live
pleading in this case is Haskett's First Amended
Complaint. (Dkt. 11).
Dudley's answer specifically denied Haskett's
allegations, asserting that it had legitimate,
non-discriminatory reasons for not hiring Haskett. T.S.
Dudley also asserted several affirmative defenses, and
counterclaimed against Haskett for abuse of process,
contending that Haskett "litigates as a hobby and that
he bragged about inventing phony claims to induce undeserved
settlements." (Dkt. 32).
Dudley has now moved for summary judgment on Haskett's
ADEA claim against it. (Dkt. 54). T.S. Dudley contends that
this Court should grant summary judgment because (1) the ADEA
does not apply to the position Haskett sought; (2) Haskett
was not qualified for the position he sought; and (3) there
is no evidence to show that T.S. Dudley's
nondiscriminatory reason for failing to hire Haskett was
has filed a response entitled "Dispute of Material Facts
Relied on By Defendant T.S. Dudley's Motion for Summary
Judgment." Dkt. 102. In that document, Haskett raised
objections to the summary judgment evidence relied upon by
T.S. Dudley and contended that there were genuine disputes of
material fact in this case. Haskett attached two emails to
Summary Judgment Standards
judgment is appropriate when "the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law."
Fed.R.Civ.P. 56(a); see also Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91
L.Ed.2d 265 (1986); Little v. Liquid Air Corp., 37
F.3d 1069, 1075 (5th Cir. 1994).
movant produces evidence tending to show that there is no
genuine dispute of material fact, the nonmovant must then
direct the court's attention to evidence in the record
sufficient to establish the existence of a genuine dispute of
material fact for trial. Celotex, 477 U.S. at
321-323. 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. The party opposing summary judgment is required
to identify specific evidence in the record and to articulate
the precise manner in which that evidence supports his claim.
Ragas v. Tennessee Gas Pipeline Co., 136 F.3d 455,
458 (5th Cir. 1998). "If the nonmoving party fails to
make a showing sufficient to establish the existence of an
element essential to its case and on which it will bear the
burden of proof at trial, summary judgment must be
granted." Celotex, 477 U.S. at 322-23.
ruling on a motion for summary judgment, the Court is
required to view all inferences drawn from the factual record
in the light most favorable to the nonmoving party.
Matsushita Elec. Indus. Co. v. Zenith Radio, 475
U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986);
Eason v. Thaler, 73 F.3d 1322, 1325 (5th Cir. 1996).
But summary judgment cannot be defeated through
"[c]onclusional allegations and denials, speculation,
improbable inferences, unsubstantiated assertions, and
legalistic argumentation." Oliver v. Scott, 276
F.3d 736, 744 (5th Cir. 2002). Additionally, allegations in a
plaintiffs 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).
parties have the obligation to specifically point out the
evidence upon which they rely. Rule 56(c)(1) provides that
"[a] party asserting that a fact cannot be or is
genuinely disputed must support the assertion by ... citing
to particular parts of materials in the record." FED. R.
Civ. P. 56(c)(1)(A); Am. Fam. Life Assur. Co. of Columbus
v. Biles, l\A F.3d 887, 896 (5th Cir. 2013). Under Rule
56(c)(3), "[t]he court need consider only the cited
materials, but it may consider other materials in the
record." Fed.R.Civ.P. 56(c)(3). The Fifth Circuit has
explained that, "Rule 56 does not impose upon the
district court a duty to sift through the record in search of
evidence to support a party's opposition to summary
judgment." Adams v. Travelers Indem. Co. of
Conn., 465 F.3d 156, 164 (5th Cir. 2006); see also
Nissho-Iwai Am. Corp. v. Kline, 845 F.2d 1300, 1307 (5th
Cir. 1988) (concluding that a deposition "was never made
part of the competent summary judgment record before the
district court" because the party opposing summary
judgment "failed to designate, or in any way refer to,
the deposition as the source of factual support" for its
response to the summary judgment motion).
Court applies the above standards while remaining mindful
that a pro se plaintiffs motions and pleadings are
to be construed liberally. See, e.g., Haines v.
Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652
(1972); Oliver v. Scott, 276 F.3d 736, 740 (5th Cir.