United States District Court, W.D. Texas, Austin Division
REPORT AND RECOMMENDATION OF THE UNITED STATES
HIGHTOWER UNITED STATES MAGISTRATE JUDGE
HONORABLE LEE YEAKEL UNITED STATES DISTRICT JUDGE
the Court are Defendants Formaspace Logistics Services, LLC
and Formaspace, LP's Motion for Summary Judgment, filed
on May 15, 2019 (Dkt. No. 18) (“Defendants'
Motion”); Plaintiffs Rodney Smith and De'Quon
Nicholas' Response in Opposition to Defendants'
Motion for Summary Judgment, filed on May 29, 2019 (Dkt. No.
19) (“Plaintiffs' Response”); and
Defendants' Reply in Support of Motion for Summary
Judgment (“Defendants' Reply”), filed on June
12, 2019 (Dkt. No. 21). On May 31, 2019, the District Court
referred Defendants' Motion to the undersigned for Report
and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B),
Federal Rule of Civil Procedure 72, and Rule 1(d) of Appendix
C of the Local Rules of the U.S. District Court for the
Western District of Texas.
Rodney Smith and De'Quon Nicholas were hired by Defendant
Formaspace, LP, a commercial office equipment manufacturer,
in 2015 and fired in December of that year. Both men, who are
African-American, allege intentional racial discrimination
and retaliation for their complaints of race discrimination
under 42 U.S.C. § 1981, as well as discrimination on the
basis of race and religion under the Texas Commission on
Human Rights Act (“TCHRA”), § 21.001 et
seq., Labor Code, Vernon's Texas Codes Annotated.
Defendants allege that Plaintiffs were discharged based on
video review showing that they were clocked in but missing
from work areas for inappropriate lengths of time on the
morning of December 5, 2015.
STANDARD OF REVIEW
judgment shall be rendered when the pleadings, the discovery
and disclosure materials, and any affidavits on file 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. 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); see also 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 its claim. See Adams v.
Travelers Indem. Co. of Conn., 465 F.3d 156, 164 (5th
Cir. 2006). 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.
argue that summary judgment is appropriate because neither
Plaintiff can provide any evidence of racial discrimination
or racial hostility; Plaintiff Nicholas admits that he does
not believe the manager who fired him, William
“Bill” Lambert, discriminated or retaliated
against him on the basis of race; a retaliation case is
impossible with respect to Plaintiff Smith because there is
no evidence Lambert had any knowledge of any complaint raised
by Smith; and neither Plaintiff has exhausted his
administrative remedies to assert claims under the
respond that they have exhausted their administrative
remedies; the video footage produced by Defendants shows
non-black employees clocked in while not working, but
Defendants took no action against them; the video footage did
not show Plaintiffs' complete work areas, and Plaintiffs
also worked in other areas of the plant; and affidavits from
Defendants' employees are inaccurate.
Discrimination Claim under 42 U.S.C. § 1981 and the
Plaintiffs allege that Defendants discriminated against them
by terminating their employment because they are
African-American. The analysis of discrimination and
retaliation claims under § 1981 and the Texas Labor Code
is identical to the analysis of Title VII claims, so the
Court analyzes the claims under Title VII. E.g.,
Shackelford v. Deloitte & Touche, LLP, 190 F.3d
398, 403 n.2 (5th Cir. 1999).
VII prohibits discrimination against an employee on the basis
of race, color, religion, sex, or national origin. 42 U.S.C.
§ 2000e et seq. For cases based on
circumstantial evidence, like this one, a court is to apply
the McDonnell Douglas burden-shifting analysis.
See Davis v. Dallas Area Rapid Transit, 383 F.3d
309, 316-17 (5th Cir. 2004) (citing McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973)). “A
plaintiff relying on circumstantial evidence must put forth a
prima facie case, at which point the burden shifts to the
employer to provide a legitimate, non-discriminatory reason
for the employment decision.” Berquist v. Wash.
Mut. Bank, 500 F.3d 344, 349 (5th Cir. 2007). If the
employer successfully articulates a legitimate,
nondiscriminatory reason for its decision, the burden returns
to the plaintiff to offer evidence that the reason given by
the employer is merely pretext for unlawful discrimination or
that the employer's purported reason for its actions was
only one of the motivating factors, and that another
motivating factor was plaintiffs' protected
characteristic. McDonnell Douglas, 411 U.S. at
804-05; Autry v. Fort Bend Indep. School Dist., 704
F.3d 344, 346-47 (5th Cir. 2013) (citing Vaughn v.
Woodforest Bank, 665 F.3d 632, 636 (5th Cir. 2011)).
to establish their prima facie case, Plaintiffs must show
that (1) they are members of a protected class; (2) they were
qualified for the position; (3) they were subject to an
adverse employment action; and (4) other similarly situated
employees were treated more favorably. Standley v.
Rogers, 680 Fed.Appx. 326, 327 (5th Cir. 2017) (quoting
Bryan v. McKinsey & Co., 375 F.3d 358, 360 (5th
do not dispute that Plaintiffs have satisfied the first three
elements of their prima facie case. The question before the
Court is whether Plaintiffs have established a prima facie
case of discrimination by demonstrating that other similarly
situated non-class members were treated more favorably than
they were. As the Fifth Circuit Court of Appeals has
The “similarly situated” prong requires a Title
VII claimant to identify at least one coworker outside of his
protected class who was treated more favorably “under
nearly identical circumstances.” This coworker, known
as a comparator, must hold the “same job” or hold
the same job responsibilities as the Title VII claimant; must
“share[ ] the same supervisor or” have his
“employment status determined by the same person”
as the Title VII claimant; ...