United States District Court, W.D. Texas, Austin Division
SPARKS SENIOR UNITED STATES DISTRICT JUDGE
REMEMBERED on this day the Court reviewed the file in the
above-styled cause, and specifically Defendant Goodwill
Industries of Central Texas, Inc. (Goodwill's Motion to
Exclude Evidence and Motion for Summary Judgment [#18],
Plaintiff Femmy Akene's Response [#30] in opposition, and
Goodwill's Reply [#31] in support. Having considered the
case file and the applicable law, the Court enters the
following opinion and orders.
case relates to Goodwill's termination of Akene's
employment from one of its stores in Austin, Texas. Am.
Compl. [#11] at ¶ 7. Akene was educated as an accountant
in Nigeria, and had over 20 years of accounting experience
before starting at Goodwill on June 29, 2015. Id. at
¶ 14. According to his complaint, Akene refused
financial reporting directives from his supervisors that he
believed to be unlawful. Id. at ¶ 16.
Thereafter, Akene received written warnings, counseling, and
a 3-day suspension before he was terminated by Goodwill in
2016. Id. at ¶¶ 19-23. Goodwill contends
it properly terminated Akene for failing to follow procedures
and directives, while Akene asserts he was wrongfully
commenced this lawsuit on April 19, 2017. Goodwill filed a
motion to dismiss some of Akene's claims and another
motion for a more definite statement for the other claims.
See Mots. [##5, 6]. Akene did not respond to either
motion. The Court granted Goodwill's motions in part,
directing Akene to file an amended complaint within 20 days
to address the deficiencies identified by Goodwill or risk
dismissal of this lawsuit. See Order of Sep. 5, 2017
[#10]. Akene missed the Court's deadline, filing an
amended complaint on October 2, 2017. See Am. Compl.
[#11]. The amended complaint includes claims for age
discrimination under the Age Discrimination in Employment Act
(ADEA), race and national origin discrimination under Title
VII, wrongful termination in violation of public policy, and
retaliation and harassment. Id. at ¶¶
filed a combined motion to exclude evidence and motion for
summary judgment on January 12, 2018. See Mot. Summ.
J. [#18]. Akene again failed to file a timely response. The
Court nevertheless granted Akene's untimely request for
an extension to the response deadline after Goodwill agreed
to the extension. See Order of Feb. 8, 2018 [#26].
Akene filed a response [#27] to Goodwill's motion for
summary judgment on the new deadline of February 16, 2018,
followed by an amended response [#28], a corrected amended
response [#29], and a seconded corrected amended response
[#30] on February 20, 2018. Goodwill's motions are now
ripe for consideration.
Legal Standard-Summary Judgment
judgment shall be rendered when the pleadings, the discovery
and disclosure materials on file, and any affidavits show
that there is no genuine dispute as to any material fact and
that the moving party is entitled to judgment as a matter of
law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett,
477 U.S. 317, 323-25 (1986); Washburn v. Harvey, 504
F.3d 505, 508 (5th Cir. 2007). A dispute regarding a material
fact is "genuine" if the evidence is such that a
reasonable jury could return a verdict in favor of the
nonmoving party. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). When 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 (1986); Washburn, 504
F.3d at 508. Further, a court "may not make credibility
determinations or weigh the evidence" in ruling on a
motion for summary judgment. Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 150 (2000);
Anderson, 477 U.S. at 254-55.
the moving party has made an initial showing that there is no
evidence to support the nonmoving party's case, the party
opposing the motion must come forward with competent summary
judgment evidence of the existence of a genuine fact issue.
Matsushita, 475 U.S. at 586. Mere conclusory
allegations are not competent summary judgment evidence, and
thus are insufficient to defeat a motion for summary
judgment. Turner v. Baylor Richardson Med. Ctr., 476
F.3d 337, 343 (5th Cir. 2007). Unsubstantiated assertions,
improbable inferences, and unsupported speculation are not
competent summary judgment evidence. Id. 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. Adams v.
Travelers Indem. Co. of Conn., 465 F.3d 156, 164 (5th
Cir. 2006). Rule 56 does not impose a duty on the court to
"sift through the record in search of evidence" to
support the nonmovant's opposition to the motion for
summary judgment. Id.
disputes over facts that might affect the outcome of the suit
under the governing laws will properly preclude the entry of
summary judgment." Anderson, 477 U.S. at 248.
Disputed fact issues that are "irrelevant and
unnecessary" will not be considered by a court in ruling
on a summary judgment motion. Id. 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.
indicated above, Goodwill seeks to exclude undisclosed
evidence and moves for summary judgment on all claims. The
Court will address Goodwill's motion for summary judgment
first, followed by Goodwill's motion to exclude.
Motion for ...