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Akene v. Goodwill Industries of Central Texas

United States District Court, W.D. Texas, Austin Division

February 28, 2018

FEMMY AKENE, Plaintiff,



         BE IT 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.


         This 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 discharged.

         Akene 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 ¶¶ 33-49.

         Goodwill 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.[1] Goodwill's motions are now ripe for consideration.


         I. Legal Standard-Summary Judgment

         Summary 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.

         Once 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.

         "Only 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.

         II. Application

         As 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.

         A. Motion for ...

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