United States District Court, S.D. Texas, Galveston Division
MEMORANDUM OPINION AND ORDER
C. HANKS, JR. UNITED STATES DISTRICT JUDGE
Kelly Weeks, filed suit against the Texas A&M University
System on July 19, 2016. Weeks' Original Complaint
alleged that Texas A&M University at Galveston, his employer,
had discriminated against him under Title VII. Weeks asserts
theories of hostile work environment, discrimination, and
retaliation under Title VII. Dkt. 1.
September 8, 2016, Weeks filed his Amended Original
Complaint, naming two separate Defendants-the "Texas A&M
University System at Galveston" and "Texas A&M
University." Dkt. 8. In his Amended Complaint, Weeks
alleges that he is a male over the age of 40 years old, and
that he was an Assistant Professor at the Galveston campus of
Texas A&M University from 2008 to 2014. Weeks alleged his
"work record was near perfect" and that he received
positive reviews and merit raises, but that his employer
nonetheless engaged in a pattern and practice of giving
preference to female professors, "while specifically
holding male counterparts to a higher standard without a
legitimate business reason."
allegations in the Amended Complaint are rather difficult to
follow, but it appears that Weeks alleges that he was
discriminated against during the process of awarding
promotions and tenure because of his gender; that he was
treated differently in employment decisions because he is
male; and that he was fired because he is male. Specifically,
Weeks alleges that, on February 21, 2014, he was informed
that he was denied tenure and that his employment would be
terminated in the near future. Weeks further contends that
that he was then "constructively terminated" on
June 20, 2014. He alleges that he was placed "in a
hostile work environment and discriminated and retaliated
against" based upon his gender and because he
"voic[ed] his opposition to the disparate and less
favorable treatment." Weeks also alleges that he filed a
complaint with the EEOC, that the EEOC issued him a right to
sue letter, and that he had filed suit within 90 days from
receipt of that letter.
October 11, 2016, Defendant "Texas A&M University
System" filed a motion to dismiss the Amended Complaint.
Dkt. 12. Texas A&M University System asserted that Weeks'
claims against it should be dismissed because 1) it is
entitled to immunity under the Eleventh Amendment; and 2)
Weeks failed to state a claim for discrimination or
retaliation under Title VII against it because Weeks was
actually employed by "Texas &M University at Galveston,
" not the larger "Texas A&M University System"
to the docket sheet of this case, Weeks did not formally
request the issuance of summons on either Defendant until
October 25, 2016. Dkt. 14, 15. On November 1, 2016, Weeks
filed a return of service stating that service had been made
upon "John Sharp, Chancellor, Texas A&M University
System" on October 31, 2016, Dkt. 16, and upon
"Michael K. Young, President, Texas A&M University"
on October 31, 2016, Dkt. 17. On December 29, 2016, both
Defendants "Texas A&M University System" and
Defendant "Texas A&M University" filed a joint
motion to dismiss Weeks' Amended Complaint. Dkt. 25. That
motion contended that Weeks' claims should be dismissed
because Weeks failed to serve either Defendant within the
90-day period required by Rule 4 of the Federal Rules of
Civil Procedure, and because Weeks failed to "commence
this action against Defendant TAMU within the 90-day
statutory limitations period." Weeks then filed a motion
asking this Court to retroactively extend the deadline for
service of process in this case. Dkt. 31.
sides have now filed their motions for summary judgment, each
providing a considerable amount of summary judgment evidence
and briefing in support. After due consideration of the
motions, and the responses, the summary judgment record, and
the applicable case law, the Court finds that there is no
genuine dispute of material fact on Weeks' claims of
discrimination, retaliation, and hostile work environment,
and that Defendants' motions for summary judgment should
be GRANTED and Week's motion should be
Summary Judgment Standard
judgment is appropriate "if 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, 477U.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). A genuine dispute of material
fact exists if the "evidence is such that a reasonable
jury could return a verdict for the nonmoving party."
Royal v. CCC & R Tres Arboles, L.L.C., 736 F.3d 396,
400 (5th Cir. 2013) (quoting Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202
(1986)). The Court "must view all facts and evidence in
the light most favorable to the non-moving party."
Feist v. La., Dep't of Justice, Office of the
Att'y Gen., 730 F.3d 450, 452 (5th Cir. 2013)
(quoting Juino v. Livingston Par. Fire Dist. No. 5,
717 F.3d 431, 433 (5th Cir. 2013)).
summary judgment 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. Further, 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.
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); see also Douglass v. UnitedServs. Auto.
Ass'n, 79 F.3d 1415, 1429 (5th Cir. 1996) (en banc)
("[C]onclusory allegations, speculation, and
unsubstantiated assertions are inadequate to satisfy the
nonmovant's burden."); Grizzle v. Travelers
Health Network, Inc., 14 F.3d 261, 268 (5th Cir. 1994)
(noting that an employee's "self-serving generalized
testimony stating her subjective belief that discrimination
occurred ... is simply insufficient to support a jury verdict
in plaintiffs favor"); Int'l Shortstop, Inc. v.
Rally's, Inc., 939 F.2d 1257, 1266 (5th Cir. 1991)
("Summary judgment, to be sure, may be appropriate,
'[e]ven in cases where elusive concepts such as motive or
intent are at issue, ... if the nonmoving party rests merely
upon conclusory allegations, improbable inferences, and
unsupported speculation." (quoting Medina-Munoz v.
R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir.
1990)) (alteration in original)).
as noted above, 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, 714 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
parties file cross-motions for summary judgment, courts are
to "review 'each party's motion independently,
viewing the evidence and inferences in the light most
favorable to the nonmoving party.'" Cooley v.
Housing Authority of City of Slidell, 747 F.3d 295, 298
(5th Cir. 2014) (quoting Ford Motor Co. v. Tex. Dep't
of Transp., 264 F.3d 493, 498 (5th Cir. 2001)).
VII prohibits an employer from discriminating based on
"race, color, religion, sex, or national origin."
42 U.S.C. § 2000e-2(a)(1). Title VII also provides that
it is unlawful for employers to retaliate against employees
who have opposed discrimination or who have participated in
actions that are considered "protected activities"
under the statute. Clark Cnty. Sch. Dist. v.
Breeden,532 U.S. 268, 269 (2001). Weeks alleges that
Defendants violated Title VII by discriminating against him
because of his gender (by failing to promote him and