1

In his responses to defendants’ motions, Jackson apparently

attempts to raise new claims (at least against FedEx) for negligent

supervision and retention of unfit employees. Because these claims

are not alleged in his first amended complaint, the court will not

consider them. “A claim which is not raised in the complaint but,

rather, is raised only in response to a motion for summary judgment

is not properly before the court.” Cutrera v. Bd. of Supervisors

of La. State Univ., 429 F.3d 108, 113 (5th Cir. 2005) (citing

Fisher v. Metro. Life Ins. Co., 895 F.2d 1073, 1078 (5th Cir.

 IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

RAYMOND JACKSON, §

 §

Plaintiff, §

 § Civil Action No. 3:03-CV-2341-D

VS. §

 §

FEDERAL EXPRESS CORPORATION, §

et al., §

 §

Defendants. §

MEMORANDUM OPINION

 AND ORDER 

In this employment discrimination case, plaintiff Raymond

Jackson (“Jackson”) sues defendants Federal Express Corporation

(“FedEx”) and Darryl Woods (“Woods”), a co-worker, for race

discrimination arising from his termination and a racially hostile

work environment, in violation of 42 U.S.C. § 1981, Title VII of

the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et

seq., and the Texas Commission on Human Rights Act (“TCHRA”), Tex.

Lab. Code Ann. §§ 21.001-21.556 (Vernon 1996 & Supp. 2004-05); for

neglecting to prevent conspiracy, in violation of 42 U.S.C. § 1986;

and under Texas law for slander and defamation and for intentional

infliction of emotional distress.1

 FedEx moves for summary

 

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1990)).

2

As the court explains below, with respect to Jackson’s TCHRAbased termination claim and his claim for intentional infliction of

emotional distress, the court holds that FedEx is entitled to

summary judgment on grounds that the court has raised sua sponte.

Accordingly, the court will not finally grant summary judgment as

to these claims until Jackson has had 20 days to file a memorandum

in opposition to the court’s proposed action.

3The court recounts the evidence favorably to Jackson, as the

summary judgment nonmovant, and draws all reasonable inferences in

his favor. See, e.g., Clift v. Clift, 210 F.3d 268, 270 (5th Cir.

2000).

- 2 -

judgment on all claims. Woods moves for dismissal under Fed. R.

Civ. P. 12(b)(6) or for summary judgment. For the reasons that

follow, the court grants FedEx’s motion as to all claims except

Jackson’s hostile work environment cause of action2 and grants

Woods’ motion.

I

Jackson, who is African-American, was a Ramp Transport Driver

at FedEx’s Dallas/Fort Worth ramp station in 2001.3 Ramp Transport

Drivers at FedEx transport unloaded freight from the ramp stations,

where freight has arrived via aircraft, to ground stations for

sorting and final delivery. Jackson was also a Yard Coordinator.

In this capacity, he coordinated the assignments of other Ramp

Transport Drivers. FedEx terminated his employment on October 23,

2001 for fighting while on duty, a violation of Section 2-5 of the

Employee Handbook that carries termination as a possible penalty.

Jackson had been a FedEx employee for 16 years. The other party to

 

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- 3 -

the fight, who is Caucasian, was not discharged because FedEx

concluded that Jackson was the aggressor.

At the time Jackson was terminated, FedEx management positions

in the geographical area that included Jackson’s job location were

extensively held by African-Americans. The Managing Director of

the Lone Star District, the Senior Manager of the Dallas/Fort Worth

ramp station, and the two Operations Managers of the Dallas/Fort

Worth ramp station, including Christopher Lloyd (“Lloyd”), the one

who investigated the fight and ultimately terminated Jackson, were

African-American.

Jackson alleges that before he was terminated he was subjected

to racial harassment by Caucasian co-workers. In support of this

contention, he submits the affidavits of several FedEx employees

who aver that they witnessed Caucasian co-workers using profanity,

hurling insults and derogatory remarks, and making racial slurs

toward him.

Ronnie L. Wooten (“Wooten”), a Ramp Transport Driver, states

that he observed several Caucasian drivers direct racial slurs and

cursing toward Jackson.

Ronnie Taylor (“Taylor”), a Handler, avers that a Caucasian

driver used racial epithets and other derogatory terms of a sexual

nature toward Jackson “almost on a daily basis.” P. App. 128. He

also recounts that the driver would “raise his right hand and yell

‘white power,’” and that this person complained that FedEx had too

 

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- 4 -

many African-American managers. Taylor also states that Tim

Sullivan (“Sullivan”) and Scott Vancil (“Vancil”), both Caucasian

drivers, insulted Jackson, “attributing his tough work ethic and

strict adherence to policy due to a lack of sex.” Id. Taylor also

avers that he heard Sullivan use racial slurs.

Jeanette Rupert (“Rupert”), who held several positions at

FedEx, avers that none of the Caucasian drivers liked Jackson,

“partly because he was thorough and hard working. Many of the

white drivers liked to hang out. But Raymond put them to work.”

Id. at 146-47. She states that, from 1999 to 2002, drivers made

insulting remarks toward Jackson, including sexual comments and

racial slurs. She recounts that she constantly heard racial slurs

in the dispatch and yard areas, which made it very difficult for

her to work there.

According to Jackson, he “repeatedly complained about the

hostile work environment and racial slurs to [FedEx] managers and

supervisors. Nevertheless, [FedEx] failed to provide [him] with

the appropriate company discrimination complaint forms.” Id. at

4. The affidavit does not provide any details of his complaints,

such as how many he made, over what period he made them, to whom

the complaints were made, when they were made, and what were the

specific subjects of the complaints.

At some point, Jackson made some suggestions to FedEx

management that resulted in drivers’ hours being cut. Recognizing

 

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- 5 -

that the drivers were expressing resentment toward Jackson as a

result, Lloyd, an Operations Manager, sent an email to Jackson’s

co-workers asking them to “[p]lease ease up on Raymond.” Id. at

153.

Jackson alleges that he was terminated on the basis of his

race. At 4:15 a.m. on October 12, 2001 Jackson and Vancil, who is

Caucasian, were involved in an altercation that led to Jackson’s

dismissal. Jackson was in a tractor-trailer at the DFW ramp

station, preparing to pull the truck out of the loading bay. As

was customary, he blew the air horn to warn pedestrians near the

back of the truck before pulling out. Vancil, who was standing

nearby, took offense to Jackson’s sounding the horn. Jackson and

Vancil took part in a verbal exchange of insults and profanity.

The incident turned into a physical altercation, but Jackson and

Vancil disagree as to who was at fault for accelerating a purely

verbal exchange into a physical altercation.

Vancil reported the incident to Lloyd, and FedEx began an

investigation. Vancil and Jackson were both suspended with pay

while the investigation was completed. Lloyd asked both men to

write statements detailing the encounter. According to Jackson’s

statement, Vancil pushed him first, he then pushed back, Vancil

attempted to hit him, but he grabbed Vancil to prevent the blow.

Vancil grabbed him, and the two fell to the ground. According to

Vancil’s statement, Jackson charged him, pushed him, and grabbed

 

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- 6 -

and ripped his sweatshirt, bringing him to the ground with Jackson

on top of him. Vancil said he never fought back.

Lloyd identified Woods as the only witness to the altercation

and asked him for a statement. Woods (who is African-American)

gave a statement that corroborated Vancil’s account. He averred

that Jackson struck Vancil first and that Vancil was never

physically aggressive toward Jackson. Based on Vancil’s complaint

and Woods’ account, Lloyd concluded that Jackson was the physical

aggressor. Woods’ time sheet for October 12, 2001 indicates,

however, that he was not on duty until 5:00 a.m. Moreover, Taylor

alleges that Woods later admitted lying about some aspects of the

altercation: “[Woods] admitted to me that he lied about the

incident between [Jackson] and [Vancil]. Woods falsely claimed

that I had seen the fight. I was at the location but I never saw

the confrontation.” Id. at 129. FedEx later terminated Woods’

employment for falsifying his time card. Woods was later convicted

of criminal conspiracy, burglary, and credit card abuse based on

conduct unrelated to this lawsuit.

FedEx terminated Jackson’s employment on October 23, 2001 for

violating Section 2-5 of the Employee Handbook, which prohibits

fighting while on duty. FedEx gave Vancil a warning letter for

using profanity. Jackson initiated FedEx’s Guaranteed Fair

Treatment Process (“GFTP”) on October 24, 2001. The GFTP is an

appeal of disciplinary action taken against a FedEx employee.

 

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4

In his first amended complaint, see 1st Am. Compl. ¶ 41,

Jackson relies on § 1981(a), which states:

All persons within the jurisdiction of the

United States shall have the same right in

every State and Territory to make and enforce

contracts, to sue, be parties, give evidence,

and to the full and equal benefit of all laws

and proceedings for the security of persons

and property as is enjoyed by white citizens,

and shall be subject to like punishment,

pains, penalties, taxes, licenses, and

exactions of every kind, and to no other.

- 7 -

Jackson first made a formal complaint of race discrimination to

management during the GFTP. FedEx again concluded that

Jackson——not Vancil——was the physical aggressor in the altercation,

and it upheld Jackson’s termination.

II

FedEx first moves for summary judgment as to Jackson’s race

discrimination claim under Title VII and § 1981,4

 which is based on

his termination. 

A

Under Title VII, it is “an unlawful employment practice for an

employer . . . to discharge any individual . . . because of such

individual’s race.” 42 U.S.C. § 2000e-2(a)(1). Section 1981

guarantees “[a]ll persons within the jurisdiction of the United

States . . . the same right . . . to make and enforce contracts”

regardless of race. 42 U.S.C. § 1981(a). “Claims of racial

discrimination brought under § 1981 are governed by the same

 

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- 8 -

evidentiary framework applicable to claims of employment

discrimination brought under Title VII.” LaPierre v. Benson

Nissan, Inc., 86 F.3d 444, 448 n.2 (5th Cir. 1996).

Because FedEx will not have the burden of proof at trial on

Jackson’s claim, it can meet its summary judgment obligation by

pointing the court to the absence of evidence to support it. See

Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once it does

so, Jackson must then go beyond his pleadings and designate

specific facts showing there is a genuine issue for trial. See id.

at 324; Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.

1994) (en banc) (per curiam). An issue is genuine “if the evidence

is such that a reasonable jury could return a verdict for the

nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

248 (1986). Summary judgment is mandatory if he fails to meet this

burden. Little, 37 F.3d at 1076. 

In the context of a Title VII/§ 1981 race discrimination

claim, Jackson must present sufficient direct or circumstantial

evidence that would permit a reasonable trier of fact to find that

his African-American race was a motivating factor in the decision

to discharge him. See, e.g., Roberson v. Alltel Info. Servs., 373

F.3d 647, 652 (5th Cir. 2004) (addressing Title VII claims for

race, color, religion, sex, or national origin discrimination).

“Direct evidence is evidence that, if believed, proves the fact of

discriminatory animus without inference or presumption.” West v.

 

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- 9 -

Nabors Drilling USA, Inc., 330 F.3d 379, 384 n.3. (5th Cir. 2003)

(Fitzwater, J.) (age discrimination case) (quoting Sandstad v. CB

Richard Ellis, Inc., 309 F.3d 893, 897 (5th Cir. 2002)). A

plaintiff who offers “sufficient direct evidence of intentional

discrimination should prevail, just as in any other case where a

plaintiff meets his burden.” Nichols v. Loral Vought Sys. Corp.,

81 F.3d 38, 40 (5th Cir. 1996) (citing Portis v. First Nat’l Bank

of New Albany, Miss., 34 F.3d 325, 328 n.6 (5th Cir. 1994)).

Because, as the court explains below, Jackson has not adduced

direct proof of race discrimination, he must rely on circumstantial

evidence.

If direct evidence is unavailable, Jackson can prove

discrimination using the “modified McDonnell Douglas approach.”

Rachid v. Jack in the Box, Inc., 376 F.3d 305, 312 (5th Cir. 2004)

(age discrimination case). As modified, McDonnell Douglas consists

of three stages. First, Jackson must establish a prima facie case

of discrimination, which “creates a presumption that [FedEx]

unlawfully discriminated against [him].” Tex. Dep’t of Cmty.

Affairs v. Burdine, 450 U.S. 248, 254 (1981). The burden then

shifts to FedEx to articulate a legitimate, nondiscriminatory

reason for discharging him. St. Mary’s Honor Ctr. v. Hicks, 509

U.S. 502, 506-07 (1993). FedEx’s burden is one of production, not

proof, and involves no credibility assessments. See, e.g., West,

330 F.3d at 384. Finally, if FedEx meets its production burden,

 

 Case 3:03-cv-02341-D Document 86 Filed 03/14/06 Page 9 of 46 PageID 923
5Jackson seems to argue, for example, that evidence that he

was fired is direct evidence of discrimination. Such an assertion,

if intended, would clearly be misplaced.

- 10 -

then Jackson may proceed under one of two alternatives: the pretext

alternative or the mixed-motives alternative. See Rachid, 376 F.3d

at 312. Under the pretext alternative, Jackson must “offer

sufficient evidence to create a genuine issue of material fact

. . . that [FedEx’s] reason is not true, but is instead a pretext

for discrimination.” Id. (internal quotations omitted). Under the

mixed-motives alternative, Jackson must offer sufficient evidence

to create a genuine issue of material fact “that [FedEx’s] reason,

while true, is only one of the reasons for its conduct, and another

motivating factor is [Jackson’s] protected characteristic[.]” Id.

(internal quotations omitted).

B

Jackson maintains that he has adduced direct evidence of

FedEx’s intentional discrimination against him on the basis of his

race. As noted, direct evidence proves the fact of discriminatory

animus without inference or presumption. West, 330 F.3d at 384 n.3.

“Such evidence typically involves statements made by the employer

or certain of its personnel that indicate that an employment

decision was based on a forbidden factor.” Bowe v. Exide Corp.,

2001 WL 705881, at *3 n.1 (N.D. Tex. June 18, 2001) (Fitzwater,

J.).5 

The only purportedly direct evidence of discrimination that

 

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- 11 -

Jackson has adduced consists of the following statements Lloyd made

about him: “[W]hat kind of mood is Ray in today? Is he an a--hole?

Is he on his period?” P. App. 129. Although these remarks are

evidence of Lloyd’s hostility toward Jackson, they do not facially

demonstrate that FedEx terminated Jackson based on his race. See

Fabela v. Socorro Indep. Sch. Dist., 329 F.3d 409, 415 (5th Cir.

2003) (“In a Title VII context, direct evidence includes any

statement or document which shows on its face that an improper

criterion served as a basis . . . for the adverse employment

action.”) (emphasis added)). Moreover, even if it could be

reasonably inferred from these statements that they are racebased——a doubtful proposition, since they do not even refer to

race, are not typologically racial, and the person who made them is

African American——such an inference is “nonetheless a necessary one

if the statement is to be accepted as evidence of discriminatory

intent.” Read v. BT Alex Brown Inc., 72 Fed. Appx. 112, 119 (5th

Cir. 2003) (unpublished opinion). Jackson has not introduced

direct evidence of intentional discrimination based on his race.

Lacking such evidence, he must establish an inference of

discrimination under the modified McDonnell Douglas framework.

 

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- 12 -

C

Under the first step, Jackson must make out a prima facie case

of race discrimination. 

To establish a prima facie case of employment

discrimination [Jackson] must establish that

he (1) is a member of a protected class; (2)

was qualified for the position; (3) was

subject to an adverse employment action; and

(4) was replaced by someone outside the

protected class, or, in the case of disparate

treatment, shows that other similarly situated

employees were treated more favorably. 

Bryan v. McKinsey & Co., 375 F.3d 358, 360 (5th Cir. 2004)

(addressing discharge-based § 1981 claim); see also Wheeler v. BL

Dev. Corp., 415 F.3d 399, 405 (5th Cir.) (“To establish a prima

facie case of discrimination under § 1981, Appellants must

establish that they: (1) are members of a protected group; (2) were

qualified for the position held; (3) were discharged from the

position; and (4) were replaced by persons outside of the protected

group.” (citing Singh v. Shoney’s, Inc., 64 F.3d 217, 219 (5th Cir.

1995) (per curiam)), cert. denied, ___ U.S. ___, 126 S.Ct. 798

(2005). The Fifth Circuit “has recognized that a plaintiff may make

[the prima facie] showing by demonstrating either that he was

replaced by someone outside the protected class or that other

similarly situated employees outside the protected class were

treated more favorably.” Wheeler, 415 F.3d at 405 (citing Okoye v.

Univ. of Tex. Houston Health Sci. Ctr., 245 F.3d 507, 512-13 (5th

Cir. 2001)).

 

 Case 3:03-cv-02341-D Document 86 Filed 03/14/06 Page 12 of 46 PageID 926
6FedEx treats this as a work-rule violation case on the basis

that it discharged Jackson for violating a work rule that prohibits

fighting. “In work-rule violation cases, a Title VII plaintiff may

establish a prima facie case by showing ‘either that he did not

violate the rule or that, if he did, white employees who engaged in

similar acts were not punished similarly.’” Mayberry v. Vought

Aircraft Co., 55 F.3d 1086, 1090 (5th Cir. 1995) (quoting Green v.

Armstrong Rubber Co., 612 F.2d 967, 968 (5th Cir. 1980) (per

curiam)). Jackson does not explicitly attempt to establish a prima

facie case through the work-rule method. He does, however, contend

that similarly-situated Caucasian employees were treated more

favorably than he. This showing, if supported by the evidence, is

sufficient under the work-rule paradigm and under the fourth

element of the disparate-treatment formulation, which includes the

alternative showing that similarly-situated employees of a

different race were treated more favorably.

- 13 -

 In this case, the first three elements are uncontested. To

establish the fourth element, Jackson does not contend that he was

replaced by someone outside the protected class. He instead

contends that similarly situated Caucasian employees were treated

more favorably than he.6 Jackson posits that FedEx is selective in

its discipline, treating African-American employees more harshly

than Caucasian employees for violations of company policy. As

proof, Jackson points to several incidents in which Caucasian

employees were not terminated for using profane, abusive, or

threatening language toward managers. Jackson must show, however,

that FedEx treated Caucasian employees more favorably in “nearly

identical circumstances.” E.g., Ryburn v. Potter, 155 Fed. Appx.

102, 107 (5th Cir. 2005) (per curiam) (unpublished opinion)

(quoting Wyvill v. United Cos. Life Ins. Co., 212 F.3d 296, 304

(5th Cir. 2000) (age discrimination case)). The circumstances of

 

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7

The record would also permit the conclusion that Vancil’s

conduct was not “nearly identical” to Jackson’s because Jackson,

not Vancil, was the aggressor, and his conduct warranted

termination under company policy. But because establishing a prima

facie case is not an onerous burden, see Burdine, 450 U.S. at 253,

and viewing the evidence favorably to Jackson, the court holds that

he has satisfied the fourth element of the prima facie test.

- 14 -

the proffered incidents involve only verbal confrontations and are

thus not nearly identical to Jackson’s incident, in which he

admitted using physical force against Vancil. Nevertheless,

accepting Jackson’s version of the facts as true, Vancil, a

Caucasian employee, provoked the confrontation with Jackson and

used physical force during the incident, but was not terminated.

This is sufficient for Jackson to establish a prima facie case of

disparate treatment.7

D

To rebut the presumption of unlawful discrimination raised by

Jackson’s prima facie case, FedEx must produce evidence that it

discharged Jackson for a legitimate, nondiscriminatory reason. See

St. Mary’s Honor Ctr., 509 U.S. at 506-07. FedEx “‘must clearly

set forth, through the introduction of admissible evidence,’

reasons for its actions which, if believed by the trier of fact,

would support a finding that unlawful discrimination was not the

cause of the employment action.” Id. at 507 (quoting Burdine, 450

U.S. at 254-55) (emphasis omitted). FedEx’s burden “is one of

production, not proof, and involves no credibility assessments.”

Martin v. El Nell Inc., 2005 WL 2148651, at *2 (N.D. Tex. Sept. 7,

 

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- 15 -

2005) (Fitzwater, J.). If FedEx meets its burden, then the

presumption of discrimination raised by Jackson’s prima facie case

is rebutted and “simply drops out of the picture.” St. Mary’s

Honor Ctr., 509 U.S. at 510-11.

FedEx has met its burden of production. It points to summary

judgment evidence that it terminated Jackson’s employment for

fighting while on duty, in violation of FedEx’s Acceptable Conduct

Policy, Section 2-5 of the Employee Handbook. “An employee’s

violation of a company work rule is a legitimate, nondiscriminatory

reason for discharging him.” Walker v. Norris Cylinder Co., 2005

WL 2278080, at *6 (N.D. Tex. Sept. 19, 2005) (Fitzwater, J.).

Furthermore, Jackson admitted in his deposition and in a written

statement prepared shortly after the altercation that he pushed

Vancil during the incident.

E

Because FedEx has satisfied its burden to produce a

legitimate, nondiscriminatory reason for Jackson’s discharge, in

order for Jackson to survive summary judgment, he must create a

genuine and material fact issue regarding the ultimate question of

discrimination.

1 

As noted, under the modified McDonnell Douglas approach,

Jackson can do this in one of two ways. Under the pretext

alternative, he can offer sufficient evidence to create a genuine

 

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- 16 -

issue of material fact that FedEx’s reason is not true, but is

instead a pretext for discrimination. Under the mixed-motives

alternative, he can offer sufficient evidence to create a genuine

issue of material fact that FedEx’s reason, while true, is only one

of the reasons for its conduct, and another motivating factor is

Jackson’s protected characteristic.

Jackson explicitly states in his brief that he is relying on

the mixed-motives alternative. See P. Br. 21 (“[This case] is a

mixed motive case controlled by Desert Palace, Inc. v. Costa[, 539

U.S. 90 (2003)].”). But his argument misapprehends the nature of

this alternative method of proving discrimination inferentially.

He appears to presuppose that, if a defendant-employer asserts a

legitimate, albeit unfounded, reason for terminating the plaintiffemployee, and the employee can demonstrate that the reason is

illegitimate, this makes the case a mixed-motives case. This

assumption is misplaced, because what Jackson is in fact describing

is the pretext alternative. “The mixed-motive framework applies to

cases in which the employee concedes that discrimination was not

the sole reason for [his] discharge, but argues that discrimination

was a motivating factor in [his] termination.” Richardson v.

Monitronics Int’l, Inc., 434 F.3d 327, 333 (5th Cir. 2005)

(addressing retaliation claim under Family and Medical Leave Act).

In this case, the court can find no indication that Jackson

concedes that discrimination was not the sole reason for his

 

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8The briefing on FedEx’s motion consists of FedEx’s July 1,

2005 brief, Jackson’s July 21, 2005 brief, FedEx’s August 8, 2005

reply brief, FedEx’s August 9, 2005 corrected brief, Jackson’s

August 29, 2005 supplemental brief, and FedEx’s September 13, 2005

reply brief. In determining the arguments that Jackson advances in

opposition to FedEx’s motion, the court has considered each of his

briefs.

- 17 -

discharge.

The court will therefore analyze the third step of the

modified McDonnell Douglas approach under the pretext alternative.

Under this approach Jackson may satisfy his burden by showing “that

the legitimate reasons offered by [FedEx] were not its true

reasons, but were a pretext for discrimination.” Reeves v.

Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000) (quoting

Burdine, 450 U.S. at 253). That is, Jackson must produce

sufficient evidence for a reasonable trier of fact to find either

that FedEx’s proffered explanation is unworthy of credence or that

a discriminatory reason more likely motivated FedEx’s decision to

terminate him. See Burdine, 450 U.S. at 256. “[T]he trier of fact

may still consider the evidence establishing the plaintiff’s prima

facie case ‘and inferences properly drawn therefrom . . . on the

issue of whether the defendant’s explanation is pretextual.’”

Reeves, 530 U.S. at 143 (quoting Burdine, 450 U.S. at 255 n.10).

2

In his initial and supplemental briefs,8

 Jackson contends that

a fact issue exists concerning whether FedEx’s stated reason for

termination is worthy of credence because (1) FedEx conducted a

 

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- 18 -

sham investigation of the incident between Jackson and Vancil, (2)

FedEx fired Jackson despite a history of selective discipline and

of ignoring violations of company policy in which Caucasians are

treated more favorably than African-Americans and (3) FedEx

managers conspired to use Woods, a problem employee with a terrible

work record, as a witness against Jackson and coerced a statement

from him. These assertions are insufficient to avoid summary

judgment. 

In cases such as this where

the employer begins an investigation and

discharges an employee based on complaints

lodged by one or more other employees, . . .

the validity of the initial complaint is not

the central issue, because the ultimate

falseness of the complaint proves nothing as

to the employer, only as to the complaining

employee. The real issue is whether the

employer reasonably believed the employee’s

allegation and acted on it in good faith, or

to the contrary, the employer did not actually

believe the co-employee’s allegation but

instead used it as a pretext for an otherwise

discriminatory dismissal. Thus, the inquiry

is limited to whether the employer believed

the allegation in good faith and whether the

decision to discharge the employee was based

on that belief.

Waggoner v. City of Garland, Tex., 987 F.2d 1160, 1165-66 (5th Cir.

1993); see also Pickens v. Shell Tech. Ventures Inc., 118 Fed.

Appx. 842, 846 (5th Cir. 2004) (per curiam) (unpublished opinion)

(“For the purposes of Title VII, this reasonable belief is enough

to justify Pickens’s termination.”); accord Jones v. Flagship

Int’l, 793 F.2d 714, 729 (5th Cir. 1986); Dickerson v. Metro. Dade

 

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- 19 -

County, 659 F.2d 574, 581 (5th Cir. Unit B Oct. 1981); Jefferies v.

Harris County Cmty. Action Ass’n, 615 F.2d 1025, 1036 (5th Cir.

1980). 

A reasonable trier of fact could only find from the summary

judgment evidence that, at the time it discharged Jackson, FedEx in

good faith believed the allegation against him and discharged him

based on that belief. Jackson asserts that FedEx chose Wendell

Beckles (“Beckles”)——a person with little experience, training, and

knowledge of company policy, disciplinary procedures, and equal

employment opportunity investigations to investigate the incident.

He complains that Beckles did not even interview him, as company

policy required, and that when Rupert tried to offer favorable

testimony, she was demoted, her pay was cut, and she was forced to

sign a confidentiality agreement. He asserts that FedEx

deliberately took “inaction” in his case.

Jackson’s arguments concerning FedEx’s so-called inept

investigation are extremely misleading. The investigation to which

he is referring occurred after he was terminated, pursuant to the

company’s GFTP. The altercation occurred on October 12, 2001. It

was investigated by Lloyd, who is African-American, and who

concluded that Jackson was the aggressor. Jackson was terminated

on October 23, 2001. The next day, October 24, 2001, Jackson

initiated the FedEx GFTP. His grievance was investigated at Step

1 by Ed Harvey (“Harvey”), a Human Resources Representative.

 

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Harvey interviewed Woods, who said he witnessed the incident, and

concluded that Jackson was the aggressor. Glen Corbin, the

Managing Director of the Lone Star District, who is AfricanAmerican, conducted the GFTP hearing and upheld Jackson’s

termination. Jackson then proceeded to Step 2 of the GFTP and

filed an equal employment opportunity grievance alleging race

discrimination, which had the effect of halting Step 2. At this

point, Beckles, a District Director who officed in Miami and who is

African-American, and Gwendolyn Lewis (“Lewis”), Beckles’ Human

Resources Representative and who is African-American, investigated

Jackson’s EEO grievance. In other words, the so-called sham

investigation conducted by an inept investigator relates entirely

to an investigation that took place as part of the EEO process,

conducted after Jackson had been discharged and after two prior

investigations had been conducted, both of which had prompted

African-American superiors to sustain Jackson’s termination. A

reasonable trier of fact could not find on this basis that FedEx

lacked a good faith belief that Jackson’s conduct warranted

termination under company policy. 

Jackson also asserts that FedEx fired him amidst a record of

selective discipline and favorable treatment of Caucasians. The

alleged favorable treatment of Caucasians is insufficient to

prevent summary judgment at the pretext stage for the same reasons

that it is inadequate to make a prima facie showing of disparate

 

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treatment. Apart from conclusory assertions in his brief that do

not cite to the summary judgment record, Jackson relies on

incidents of verbal conduct, not physical aggression, to show that

Caucasians were not disciplined.

Finally, Jackson avers that FedEx managers conspired to use

Woods as a witness against him. This allegation is based on

conclusory assertions, unreasonable inferences, and conjecture that

is so thin that it is inadequate to raise a genuine fact issue.

For example, to support the assertion in his brief that FedEx

coerced a statement from Woods, Jackson cites a disciplinary letter

that Woods received. See P. Br. 14. To bolster the contention

that FedEx’s managers convinced Woods to give a statement that he

witnessed the altercation, he cites ¶ 9 of the affidavit of Taylor.

That paragraph merely contains Taylor’s testimony that Woods

admitted he had lied about seeing the fight, that Woods had falsely

stated that Taylor had seen it, and that pages of documents

attached to his affidavit were accurate copies of correspondence

with FedEx management. The assertion that “the managers conspired

to use Woods, a criminal, as a witness against Jackson,” P. Supp.

Br. 9, is not supported at all. It precedes the allegation that he

was at his managers’ mercy because he had been threatened with

termination just days before he gave the so-called coerced

statement. 

“Conclusory allegations, speculation, and unsubstantiated

 

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9Jackson has also failed to produce evidence that would permit

a reasonable trier of fact to find that, in addition to FedEx’s

proffered reason, it had a discriminatory motive. 

- 22 -

assertions are inadequate.” Ramsey v. Henderson, 286 F.3d 264, 269

(5th Cir. 2002) (quoting Douglass v. United Servs. Auto. Ass’n, 79

F.3d 1415, 1429 (5th Cir. 1996) (en banc)); see also Lawrence v.

Univ. of Tex. Med. Branch, 163 F.3d 309, 313 (5th Cir. 1999) (per

curiam) (“[A] subjective belief of discrimination, however genuine,

[may not] be the basis of judicial relief.”) (second alteration in

original) (quoting Elliott v. Group Med. & Surgical Serv., 714 F.2d

556, 567 (5th Cir. 1983)); Ray v. Tandem Computers, Inc., 63 F.3d

429, 435 (5th Cir. 1995) (“Bald assertions of . . . discrimination

are inadequate to permit a finding that proscribed discrimination

motivated [the defendant’s] actions against [the plaintiff].”).9

Without sufficient evidence to support a reasonable finding of

pretext, Jackson has failed to meet his burden at the third stage

of the modified McDonnell Douglas framework. 

Accordingly, the court grants FedEx summary judgment

dismissing Jackson’s race discrimination claim under Title VII and

§ 1981.

F

In his first amended complaint, Jackson also alleges that

FedEx is liable for violating the TCHRA. Perhaps because the TCHRA

claim is not listed in the pertinent heading in the first amended

complaint, see 1st Am. Compl. § IV, FedEx does not address it in

 

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its motion or brief. Nevertheless, Texas courts construe the TCHRA

consistently with federal law interpreting Title VII. See

Shackelford v. Deloitte & Touche, LLP, 190 F.3d 398, 404 n.2 (5th

Cir. 1999) (“[T]he law governing claims under the TCHRA and Title

VII is identical.”); Caballero v. Cent. Power & Light Co., 858

S.W.2d 359, 361 (Tex. 1993) (“Another stated purpose [of the TCHRA]

is to coordinate and conform with federal law under Title VII of

the Civil Rights Act of 1964, as amended.” (internal citations

omitted)). 

Because FedEx is entitled to summary judgment dismissing

Jackson’s Title VII/§ 1981 race discrimination claim based on his

termination, it follows inexorably that Jackson cannot recover

under the TCHRA on this claim. But because FedEx did not raise

TCHRA in its motion, it would be error to grant summary judgment on

a ground not raised. See, e.g., John Deere Co. v. Am. Nat’l Bank,

Stafford, 809 F.2d 1190, 1192 (5th Cir. 1987). The court can,

however, grant summary judgment sua sponte, provided it gives

Jackson adequate notice. See, e.g., Arkwright-Boston Mfrs. Mut.

Ins. Co. v. Aries Marine Corp., 932 F.2d 442, 445 (5th Cir. 1991)

(“[D]istrict courts can definitely grant summary judgment sua

sponte, upon proper notice to the adverse party.”). Accordingly,

Jackson is given 20 days from the date of this memorandum opinion

and order to file a memorandum in which he states any basis on

which he relies to contend that his TCHRA-based termination claim

 

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10Jackson is not, of course, required to file such a memorandum

if, for example, he cannot distinguish his TCHRA claim.

11The fifth element need not be established if the harassment

is allegedly committed by the victim’s supervisor. Celestine v.

Petroleos de Venez. SA, 266 F.3d 343, 353-54 (5th Cir. 2001); see

also Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998);

Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765 (1998).

Jackson contends that he was harassed by Lloyd, a supervisor, when

Lloyd made the following remarks: “[W]hat kind of mood is Ray in

today? Is he an a--hole? Is he on his period?” P. App. 129.

Jackson has not adduced evidence, however, that Lloyd’s remarks

were based on Jackson’s race. See supra § II(B) (rejecting

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should not also be dismissed on the same basis that the court has

dismissed the Title VII/§ 1981 race discrimination claim arising

from his termination. After considering his response,10 the court

will either dismiss the TCHRA-based termination claim or invite

FedEx to file a response.

III

FedEx also moves for summary judgment as to Jackson’s claim of

a racially hostile work environment. 

A

To establish a prima facie case of hostile work environment

based on race, Jackson must show that (1) he belongs to a protected

group, (2) he was subject to unwelcome harassment, (3) the

harassment complained of was based on race, (4) the harassment

complained of affected a term, condition, or privilege of

employment, and (5) FedEx knew or should have known of the

harassment in question and failed to take prompt remedial action.

Ramsey, 286 F.3d at 268.11

 

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assertion that this proof was direct evidence was of race

discrimination). Because Jackson has not created a fact issue of

racial harassment on the part of a FedEx supervisor, the court

frames Jackson’s hostile work environment claim as a claim of coworker racial harassment. Jackson must therefore demonstrate that

FedEx knew or should have known of the co-worker harassment.

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B

Jackson meets the first element because he is AfricanAmerican. 

The court thus turns to the second and third components: that

he was subjected to unwelcome harassment based on race. Harassment

is based on race if “the complained-of conduct had a racial

character or purpose.” Harris-Childs v. Medco Health Solutions,

Inc., 2005 WL 562720, *6 (N.D. Tex. Mar. 10, 2005) (Means, J.).

Jackson must demonstrate a “connection between the allegedly

harassing incidents and [his] protected status.” Id. FedEx

maintains that Jackson’s harassment was not based on race but was

instead the result of resentment toward his rigorous work ethic,

his expectations of the same from the Caucasian drivers, and his

suggestions to management that led to drivers’ hours being cut. It

also contends that many of the harassing comments merely included

profanity and insults and did not include racial slurs. 

Jackson states in his affidavit that there were “comments and

racial slurs [that] continued to permeate my workplace,” P. App.

330, and that he “was force[d] to work under abusive and degrading

conditions,” id. He has also adduced evidence from Wooten, a FedEx

 

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12Jackson’s reliance on this evidence, while helpful to his

hostile work environment claim, confirms the weakness of his claim

that he was discharged based on his race. In fact, AfricanAmericans held several top management jobs at the location where

Jackson worked at the time he was terminated, and the decision to

discharge him was essentially made and upheld by African-American

managers.

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Ramp Transport Driver, that for “several years” he “witnessed and

heard slurs and cursing directed toward [Jackson] from several

white drivers. I personally experience[d] similar cursing and

racial slurs.” Id. at 125. Taylor testified that “white [d]rivers

constantly made disparaging remarks toward [Jackson],” id. at 127,

and that one driver called him a “n---er and a faggot and a queer

almost on a daily basis,” id. at 128. The same person complained

that FedEx had too many African-American managers and

coordinators.12 Rupert testified that she observed drivers use

racial slurs against Jackson over a period of several years, from

1999 until 2002. Id. at 147. She characterized the comments as

“‘ugly’ and ruthless.” Id. Michael Henry (“Henry”), a FedEx

Handler, averred that “There was racial tension from both sides and

the yard was extremely hostile at times.” Id. at 120. Viewed

favorably to Jackson as the nonmovant, this evidence would permit

a reasonable trier of fact to find that he was subjected to

unwelcome harassment based on race.

 

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C

To meet the fourth element, Jackson must demonstrate that the

harassment affected a term, condition, or privilege of employment.

“For harassment on the basis of race to affect a term, condition,

or privilege of employment . . . it must be ‘sufficiently severe or

pervasive to alter the conditions of the victim’s employment and

create an abusive working environment.’” Ramsey, 286 F.3d at 268

(internal quotations omitted) (quoting Harris v. Forklift Sys.,

Inc., 510 U.S. 17, 21 (1993)). Title VII prohibits “a [racially]

objectionable environment [that is] both objectively and

subjectively offensive, one that a reasonable person would find

hostile or abusive, and one that the victim in fact did perceive to

be so.” Faragher v. City of Boca Raton, 524 U.S. 775, 787 (1998)

(addressing sex discrimination) (citing Harris, 510 U.S. at 21-22).

“Actionable harassment must involve ‘racially discriminatory

intimidation, ridicule[,] and insults.’” Felton v. Polles, 315

F.3d 470, 485 (5th Cir. 2002) (quoting Walker v. Thompson, 214 F.3d

615, 625 (5th Cir. 2000)) (applying Title VII case law to a claim

brought under 42 U.S.C. § 1983); see also Harris, 510 U.S. at 21.

“In determining whether a workplace constitutes a hostile work

environment, courts must consider the following circumstances: ‘the

frequency of the discriminatory conduct; its severity; whether it

is physically threatening or humiliating, or a mere offensive

utterance; and whether it unreasonably interferes with an

 

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13Henry’s testimony about racial tension that was extremely

hostile at times, while of probative value in corroborating that

Jackson was subjected to unwelcome harassment based on his race,

does not relate specifically to Jackson and is not specific as to

duration or frequency.

- 28 -

employee’s work performance.’” Ramsey, 286 F.3d at 268 (5th Cir.

2002) (quoting Walker, 214 F.3d at 625). Merely offensive conduct

is not actionable. Harris, 510 U.S. at 21. 

The evidence concerning the fourth factor makes this a close

case because Jackson’s proof is limited solely to the use of racial

slurs, and, with perhaps one exception (use of the highly offensive

word “n---er”), Jackson and the other witnesses describe the racial

slurs in only the most general and amorphous terms.13 To meet the

fourth factor, the conduct must be both objectively and

subjectively offensive, such that a reasonable person would find

them to be hostile or abusive. When this evidence is developed and

tested at trial, a jury may well find that the actual terms used

were not objectively and subjectively offensive, were not used in

Jackson’s presence with sufficient frequency to be severe or

pervasive, or did not unreasonably interfere with his work

performance. Nevertheless, the evidence is sufficient to permit a

reasonable trier of fact to find that the conduct in question was

sufficiently severe or pervasive to alter the conditions of

Jackson’s employment and create an abusive working environment.

Summary judgment cannot be granted in such circumstances. 

This is not a case that, so far as the record shows, is based

 

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- 29 -

on a limited number of infrequent racial slurs. If it were,

summary judgment would be warranted. See, e.g., Mosley v. Marion

County, Miss., 111 Fed. Appx. 726, 727-28 (5th Cir. 2004)

(unpublished opinion) (per curiam) (holding that admissible

evidence of three incidents involving use of racial slurs

insufficient to establish genuine issue of material fact for Title

VII hostile work environment claim); Fortenberry v. Texas, 75 Fed.

Appx. 924, 928 (5th Cir. 2003) (per curiam) (unpublished opinion)

(harassing conduct, including two incidents almost two years apart

where co-workers used racial slurs and remedial action was taken

each time, did not affect term, condition, or privilege of

employment and, because they were isolated over long time period,

they were not sufficiently severe or pervasive to constitute

abusive or hostile work environment); Hurst v. Transcont. Gas

Corp., 62 Fed. Appx. 557 (5th Cir. 2003) (per curiam) (unpublished

opinion) (two alleged racial slurs did not suffice to create

hostile work environment). Instead, Jackson’s evidence is more

like that which the Fifth Circuit has suggested is sufficient to

establish a hostile work environment. “[The Fifth Circuit] has

opined that ‘[d]iscriminatory verbal intimidation, ridicule, and

insults may be sufficiently severe or pervasive to alter the

conditions of the victim’s employment and create an abusive working

environment that violates Title VII.’” Walker, 214 F.3d at 626

(quoting Wallace v. Tex. Tech Univ., 80 F.3d 1042, 1049 n.9 (5th

 

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Cir. 1996)). In Wallace the court assumed that specific evidence

of routinely made racist remarks would raise a fact issue that

would prevent summary judgment. Wallace, 80 F.3d at 1049. And in

Walker the panel vacated summary judgment as to the plaintiffs’

hostile work environment claim where the offensive remarks began in

1994, shortly after one plaintiff was hired, and had not ceased as

of one week before the plaintiffs resigned in May 1997. Walker,

214 F.3d at 626. The precise racial slurs at issue in Walker are

set out with greater detail in the court’s opinion than are the

ones in Jackson’s evidence. But, viewed favorably to Jackson, the

evidence he has produced is sufficient to withstand summary

judgment.

D

The fifth element obligates Jackson to establish that FedEx

knew or should have known of the harassment in question and failed

to take prompt remedial action. “A [T]itle VII employer has actual

knowledge of harassment that is known to ‘higher management’ or to

someone who has the power to take action to remedy the problem.”

Sharp v. City of Houston, 164 F.3d 923, 929 (5th Cir. 1999) (sexual

harassment case) (citing Nash v. Electrospace Sys., Inc., 9 F.3d

401, 404 (5th Cir. 1993) (per curiam)). 

Jackson avers that he “repeatedly complained about the hostile

work environment and racial slurs to [FedEx] managers and

supervisors.” P. App. 329. He does not provide any details of his

 

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complaints, such as how many he made, over what period they were

made, to whom they were made, when they were made, and what were

the specific subjects of the complaints. He also states that he

complained to management as early as February 13, 1997 about

“disruptive and hostile conduct and abusive language,” id. at 330,

but he does not specify that the conduct or language was racebased. In his supplemental brief, Jackson asserts that he reported

racial slurs and hostility in April 1997, but he does not provide

any further details. He also states that Henry reported racial

slurs directed at him, but he provides no specific information

regarding the complaint. Even if he had provided details in the

brief it would not be competent summary judgment evidence. See

Larry v. White, 929 F.2d 206, 211 n.12 (5th Cir. 1991) (“Unsworn

pleadings, memoranda, or the like are not, of course, competent

summary judgment evidence.”). Jackson also asserts in his brief

that he complained of harassment during the GFTP process, but this

was after his employment had already been terminated.

Nevertheless, even if Jackson has failed at the summary

judgment stage to create a genuine fact issue as to FedEx’s actual

knowledge of racial harassment, he has created a fact issue

regarding whether it had constructive knowledge. A defendant “also

may be liable if it had constructive knowledge, i.e., if through

the exercise of reasonable care it should have known what was going

on but failed to address it.” Sharp, 164 F.3d at 930. FedEx can

 

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be found to have had constructive knowledge of Jackson’s harassment

“[i]f the harassment complained of [was] so open and pervasive that

[FedEx] should have known of it, had it but opened its corporate

eyes.” Id. The summary judgment evidence would permit a

reasonable trier of fact to find that the use of racial slurs and

epithets was commonplace at the site where Jackson worked. Jackson

averred that comments and racial slurs permeated his workplace.

Wooten said that, over a period of several years, he and Jackson

were consistently subjected to racial slurs, and he averred that

management lacked control over drivers, who consequently became

increasingly profane. Taylor observed white drivers constantly

make disparaging remarks, and one driver called Jackson a “n---er”

almost on a daily basis. Rupert observed drivers use “ugly” and

“ruthless” racial slurs against Jackson over a period of several

years, from 1999 until 2002, and said that constant cursing and

racial slurs made it extremely difficult for her to work at the

site. P. App. 147. Henry observed that there was racial tension

from both sides and the yard was extremely hostile at times.

The evidence would permit a reasonable trier of fact to find

there was an environment of open and pervasive racial tension and

hostility at Jackson’s work site. A reasonable trier of fact could

find that FedEx had constructive knowledge that Jackson was being

subjected to a racially hostile work environment and failed to take

 

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14This is especially true in light of the lack of any summary

judgment evidence that FedEx had a well-communicated antiharassment policy that afforded Jackson the opportunity to file a

complaint of harassment before his discharge. See Sharp, 164 F.3d

at 930 (“[T]he existence and effectiveness of an anti-harassment

policy may be relevant in determining whether the employer should

have known about the hostile environment . . . .”).

- 33 -

prompt remedial action.14

Because the court concludes that Jackson has satisfied the

elements of a prima facie case of hostile work environment on the

basis of race, the court denies FedEx’s motion for summary judgment

on Jackson’s hostile work environment claim under Title VII,

§ 1981, and the TCHRA.

IV

FedEx next moves for summary judgment on Jackson’s state-law

claim for slander and defamation on the basis that it is timebarred. 

Under Texas law, limitations is an affirmative defense on

which FedEx will have the burden of proof. See, e.g, Morriss v.

Enron Oil & Gas Co., 948 S.W.2d 858, 867 (Tex. App. 1997, no writ)

(“The statute of limitations is an affirmative defense.”). When

the party who will have the burden of proof at trial concerning an

affirmative defense seeks summary judgment on the basis of that

defense, it “must establish ‘beyond peradventure all of the

essential elements of the . . . defense.’” Bank One, Tex., N.A. v.

Prudential Ins. Co. of Am., 878 F. Supp. 943, 962 (N.D. Tex. 1995)

(Fitzwater, J.) (quoting Fontenot v. Upjohn Co., 780 F.2d 1190,

 

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15In its initial and corrected briefs, FedEx refers to the

complaint as having been filed October 8, 2003. The record

reflects that it was filed on October 7, 2003.

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1194 (5th Cir. 1986)). Under Texas law, a plaintiff has one year

from the time the cause of action accrues to bring suit for libel

or slander. Tex. Civ. Prac. & Rem. Code § 16.002(a) (Vernon 2002).

 Jackson filed his complaint on October 7, 2003.15 FedEx has

demonstrated beyond peradventure that Jackson’s slander and

defamation claim accrued more than one year before he filed suit.

Accordingly, FedEx is entitled to summary judgment dismissing his

slander and defamation claim as time-barred.

V

The court turns next to Jackson’s claim against FedEx for

intentional infliction of emotional distress claim. 

FedEx posits that it is entitled to summary judgment because

Jackson cannot adduce proof that FedEx engaged in outrageous

conduct. Without suggesting that this argument is unsound, the

court raises sua sponte that the claim should be dismissed for a

more fundamental deficiency.

In Hoffmann-LaRoche Inc. v. Zeltwanger, 144 S.W.3d 438 (Tex.

2004), the Texas Supreme Court reiterated that the tort claim of

intentional infliction of emotional distress was originally

recognized to be a “‘gap-filler’ tort, judicially created for the

limited purpose of allowing recovery in those rare instances in

which a defendant intentionally inflicts severe emotional distress

 

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16As the court notes supra at note 10 concerning Jackson’s

TCHRA-based discrimination claim, he is not required to file such

a memorandum if he cannot demonstrate a viable ground to remove his

case from the preclusive reach of Hoffmann-LaRoche.

- 35 -

in a manner so unusual that the victim has no other recognized

theory of redress.” Id. at 447. In Hoffmann-LaRoche the court

addressed the claims of a plaintiff who sued her former employer

for sexual harassment and intentional infliction of emotional

distress. Id. at 441-42. It held that because the gravamen of her

complaint was sexual harassment, she was unable to pursue both

claims unless she proved acts independent of her sexual harassment

claim that supported a claim for intentional infliction of

emotional distress. See id. at 441.

The gravamen of Jackson’s complaint of intentional infliction

of emotional distress is his race discrimination claims for

disparate treatment and a hostile work environment. See 1st Am.

Compl. ¶¶ 56 (incorporating ¶¶ 9-31) and 57. He does not rely on

acts independent of these claims to hold FedEx liable.

Accordingly, Jackson is given 20 days from the date of this

memorandum opinion and order to file a memorandum in which he

states any basis on which he relies to contend that his claim for

intentional infliction of emotional distress should not be

dismissed on this basis.16 After considering his response, the

court will either dismiss the claim or invite FedEx to file a

response.

 

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- 36 -

VI

FedEx moves for summary judgment on Jackson’s 42 U.S.C. § 1986

claim for neglecting to prevent conspiracy, contending it is timebarred. Because limitations is an affirmative defense on which

FedEx will have the burden of proof at trial, it must establish

beyond peradventure all of the essential elements of the defense.

The statute of limitations for a § 1986 claim is one year.

See 42 U.S.C. § 1986 (“[N]o action under the provisions of this

section shall be sustained which is not commenced within one year

after the cause of action has accrued.”). FedEx asserts that

Jackson’s § 1986 claim accrued when he was terminated on October

12, 2001, and that it is time-barred because Jackson did not file

suit until October 7, 2003, nearly two years later. Jackson does

not dispute that the § 1986 claim accrued in 2001; rather, he

posits that, under Rule 15(c), the date of filing relates back to

the date he filed his complaint of discrimination with the Equal

Employment Opportunity Commission (“EEOC”). Jackson’s argument is

misplaced. 

Rule 15(c) provides that “[a]n amendment of a pleading relates

back to the date of the original pleading” under certain

circumstances. Rule 15(c) (emphasis added). Nothing in Rule 15(c)

expressly or in principle allows the date of a claim to relate back

 

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17Moreover, Jackson cannot have a valid § 1986 claim absent a

viable § 1985(3) claim. See Money v. Great Bend Packing Co., 783

F. Supp. 563, 576 (D. Kan. 1992). Jackson’s EEOC complaint would

have been based on a “deprivation of a right created by Title VII,”

which “cannot be the basis for a cause of action under § 1985(3).”

Great Am. Fed. Sav. & Loan Ass’n v. Novotny, 422 U.S. 366, 378

(1979). For this reason as well, the court views Jackson’s EEOC

complaint as being distinct from his § 1986 claim.

- 37 -

to the date of filing a claim of discrimination with the EEOC.17

Accordingly, FedEx has established beyond peradventure that

Jackson’s § 1986 claim is time-barred, and the action is dismissed.

VII

The court next considers Woods’ motion to dismiss the claims

against him under Rule 12(b)(6) for failure to state a claim or,

alternatively, for summary judgment.

A

As a threshold matter, the court must address the timeliness

of Woods’ motion. A Rule 12(b)(6) motion is untimely if it is made

after the service of a responsive pleading. Rule 12(b) (“A motion

making any of these defenses shall be made before pleading if a

further pleading is permitted.”); 5B Charles Alan Wright & Arthur

R. Miller, Federal Practice and Procedure § 1357, at 408 (3d ed.

2004). Woods’ Rule 12(b)(6) motion is untimely because he filed it

on November 29, 2005, after he answered Jackson’s first amended

complaint on November 3, 2005. Nevertheless, the court will treat

the motion as if it were a Rule 12(c) motion for judgment on the

pleadings. See, e.g., Jones v. Greninger, 188 F.3d 322, 324 (5th

 

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Cir. 1999) (per curiam) (upholding this court’s conversion of Rule

12(b)(6) motion into one under Rule 12(c)). The standard for

deciding a motion under Rule 12(c) is the same as the one for

deciding a motion under Rule 12(b)(6). Great Plains Trust Co. v.

Morgan Stanley Dean Witter & Co., 313 F.3d 305, 313 n.8 (5th Cir.

2002) (Fitzwater, J.) (citing 5A Wright & Miller, supra § 1368, at

591 (Supp. 2002) (“A number of courts have held that the standard

to be applied in a Rule 12(c) motion is identical to that used in

a Rule 12(b)(6) motion.”) (footnote omitted)). Jackson does not

object to this procedure. In his brief in response to Woods’

motion, he in fact states that the court must treat the motion as

one for judgment on the pleadings under Rule 12(c) or 12(h)(2).

Cf. Joseph v. Patterson, 795 F.2d 549, 562 n.1 (6th Cir. 1986)

(noting that it is appropriate to treat untimely Rule 12(b)(6)

motion as Rule 12(c) motion when plaintiff does not object).

B

Woods first moves for judgment as to Jackson’s Title VII

claim. He contends the claim is time-barred, Jackson failed to

exhaust his administrative remedies, and Woods cannot be held

liable because he was not Jackson’s employer. The court need only

address the last contention. 

The court accepts the complaint’s well-pleaded facts as true

and views them in the light most favorable to Jackson. See Great

Plains, 313 F.3d at 312-13. The court does not, however, “rely

 

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upon conclusional allegations or legal conclusions that are

disguised as factual allegations.” Jeanmarie v. United States, 242

F.3d 600, 602-03 (5th Cir. 2001). “Pleadings should be construed

liberally, and judgment on the pleadings is appropriate only if

there are no disputed issues of fact and only questions of law

remain.” Great Plains, 313 F.3d at 312 (quoting Hughes v. Tobacco

Inst., Inc., 278 F.3d 417, 420 (5th Cir. 2001)). The motion should

not be granted unless Jackson would not be entitled to relief under

any set of facts that he could prove consistent with the complaint.

Id. at 313.

Woods asserts that Title VII does not afford an employee a

cause of action against a person who was not his employer. The

court agrees. Title VII does not permit the imposition of

liability upon an individual who does not meet Title VII’s

definition of “employer.” See, e.g., Grant v. Lone Star Co., 21

F.3d 649, 653 (5th Cir. 1994). The complaint does not allege any

non-conclusional facts that, viewed liberally in Jackson’s favor,

support the conclusion that Woods was Jackson’s employer, nor does

it support this inference. In his response brief, Jackson makes no

attempt to argue that he can recover against Woods under Title VII,

and he relies instead on § 1981. The court thus grants Woods’

motion for judgment on the pleadings and dismisses Jackson’s Title

VII claim against him.

 

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C

Woods moves for judgment dismissing Jackson’s § 1981 cause of

action on the ground that it is time-barred. Alternatively, he

moves for summary judgment. The court will address Woods’

alternative motion.

As the court has noted above, race discrimination claims

brought under § 1981 are governed by the same evidentiary framework

that applies to Title VII claims. To establish a prima facie case

of race discrimination relating to his termination, Jackson must

demonstrate, inter alia, that Woods took an adverse employment

action against him. See Bryan, 375 F.3d at 360. The summary

judgment evidence demonstrates that Woods, as Jackson’s coemployee, did not and could not have taken the adverse employment

action of terminating Jackson’s employment.

To establish a prima facie case of hostile work environment,

Jackson must demonstrate that Woods subjected Jackson to unwelcome

harassment on the basis of his race. See Ramsey, 286 F.3d at 268.

Jackson has not adduced evidence that Woods subjected him to racial

slurs, epithets, or other derogatory remarks. Cf. Felton, 315 F.3d

at 485 (“Actionable harassment must involve ‘racially

discriminatory intimidation, ridicule[,] and insults.’”) (quoting

Walker, 214 F.3d at 625)). 

Jackson does not directly dispute these deficiencies in his

response brief. Instead, he argues on the basis of allegations in

 

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his first amended complaint that Woods is liable for FedEx’s

decision to discharge him because Woods’ fabricated account of

Jackson’s altercation with Vancil gave FedEx a pretextual reason to

terminate him. He also maintains that FedEx managers conspired

with Woods to terminate him based on his race, using a fabricated,

pretextual reason. Jackson cites allegations of his first amended

complaint, but does not adduce summary judgment evidence that Woods

subjected him to pervasive harassment, a hostile work environment,

higher scrutiny, unfair disciplinary action, and termination.

 N.D. Tex. Civ. R. 56.5(c) provides that “[a] party whose

. . . response is accompanied by an appendix must include in its

brief citations to each page of the appendix that supports each

assertion that the party makes concerning the summary judgment

evidence.” This court is not required to “comb the record” in

search of a genuine issue of material fact. See Doddy v. Oxy USA,

Inc., 101 F.3d 448, 463 (5th Cir. 1996). Because Jackson has not

cited summary judgment evidence and instead relies on the

assertions of his brief or of his first amended complaint, he “is

relegated to [his] unsworn pleadings, which do not constitute

summary judgment evidence.” Bookman v. Shubzda, 945 F. Supp. 999,

1002 (N.D. Tex. 1996) (Fitzwater, J.) (citing Solo Serve Corp. v.

Westowne Assocs., 929 F.2d 160, 165 (5th Cir. 1991)). “Unsworn

pleadings, memoranda, or the like are not, of course, competent

summary judgment evidence.” Larry, 929 F.2d at 211 n.12.

 

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18Jackson was clearly on notice that the court could decide

this question in the context of a summary judgment motion. He

cited Rule 56 and the summary judgment standards throughout his

response brief, and he specifically recognized his obligations

under this court’s local civil rules. See, e.g., P. Br. 1 (citing

Rule 56 and N.D. Tex. Civ. R. 56.4(b)).

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Conclusory assertions, made without any citation to evidence, are

insufficient to withstand summary judgment. See, e.g., Ramsey, 286

F.3d at 269.18

Moreover, Jackson’s assertion of a § 1981 conspiracy appears

in essence to be a claim under § 1985——the civil rights statute

that addresses conspiracies——but he has not asserted a § 1985 claim

in this case. 

Accordingly, because Jackson has failed to establish a prima

facie case either of race discrimination or of a hostile work

environment against Woods individually, the court grants Woods’

motion for summary judgment dismissing Jackson’s § 1981 claim.

D

Finally, the court considers Woods’ motion for judgment as to

the remaining claims. 

Woods asserts that Jackson’s § 1986 claim and his state-law

claims for slander and defamation and intentional infliction of

emotional distress should be dismissed as time-barred. The

statutes of limitations for Jackson’s § 1986 and slander and

defamation claims are one year. The statute of limitations for his

intentional infliction of emotional distress claim is two years.

 

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See Patrick v. McGowan, 104 S.W.3d 219, 224 (Tex. App. 2003, no

pet.) (citing Tex. Civ. Prac. & Rem. Code § 16.003 (Vernon 2002));

Brady v. Blue Cross & Blue Shield of Tex., Inc., 767 F. Supp. 131,

134 (N.D. Tex. 1991) (Fitzwater, J.). 

“In the usual case, th[e] court is unable to grant dismissal

under Rule 12(b)(6) based on an affirmative defense because it

rarely appears on the face of the complaint.” Simon v. Telsco

Indus. Employee Benefit Plan, 2002 WL 628656, at *1 (N.D. Tex. Apr.

17, 2002) (Fitzwater, J.). “It is well settled . . . that in order

for a defendant to prevail on the basis of limitations at the

pleadings stage, the plaintiff must normally plead himself out of

court.” Funches v. City of Dallas, 1999 WL 261842, at *2 (N.D.

Tex. Apr. 28, 1999) (Fitzwater, J.) (citing Whirlpool Fin. Corp. v.

GN Holdings, Inc., 67 F.3d 605, 608 (7th Cir. 1995) (holding that

“if a plaintiff pleads facts that show its suit barred by a statute

of limitations, it may plead itself out of court under a Rule

12(b)(6) analysis”)). Here, Jackson has done so. It is undisputed

that Jackson did not add Woods as a defendant until he filed his

first amended complaint on May 17, 2005. He does not dispute

Woods’ contention that the latest any of these causes of action

could have accrued is October 12, 2001——the date of Jackson’s

termination——more than three years earlier. Instead, he alleges

that, under Rule 15(c), the date of the claims relates back to the

 

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19Even if true, Jackson’s § 1986 and defamation claims are

nevertheless time-barred, as the court explains supra at §§ IV and

VI.

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date of his complaint, which is October 7, 2003.19 He contends that

his complaint against FedEx gave Woods fair notice that litigation

had arisen from Woods’ false testimony concerning Jackson, and that

he would also be held liable for discrimination, slander, and

conspiracy.

Jackson relies on the mistaken premise that his claim against

Woods relates back to the filing of his complaint because it arises

out of the same conduct, transaction, or occurrence set forth or

attempted to be set forth in his complaint. He relies for this

premise on Johnson v. Crown Enterprises, Inc., 398 F.3d 339, 432

(5th Cir. 2005). Johnson is distinguishable, however, because it

pertains to a factual scenario covered by Rule 15(c)(2). Rule

15(c)(2) applies when a plaintiff is not changing or adding a

party. The amendment relates back if “the claim or defense

asserted in the amended pleading arose out of the conduct,

transaction, or occurrence set forth or attempted to be set forth

in the original pleading[.]” Rule 15(c)(2). In Johnson the

plaintiff attempted to bring a new § 1981 claim against the same

party. Johnson, 398 F.3d at 341. 

 Here, however, Jackson added Woods as a party for the first

time in his first amended complaint. The only conceivable

subsection of Rule 15(c) that would permit the addition of Woods to

 

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20Jackson does not rely on Rule 15(c)(1), which authorizes an

amendment to relate back when “relation back is permitted by the

law that provides the statute of limitations applicable to the

action[.]”

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relate back is Rule 15(c)(3),20 which pertains to an amendment that

“changes the party or the naming of the party against whom a claim

is asserted[.]” But that subsection is unavailing because it

“applies only in cases involving ‘a mistake concerning the identity

of the proper party.’” Nelson v. Adams, USA, Inc., 529 U.S. 460,

467 n.1 (2000) (quoting Rule 15(c)(3)(B)). It is apparent from

Jackson’s complaint and his first amended complaint that he did not

mistakenly name another party in place of Woods, whom he had

intended to sue. He originally sued no one except FedEx, and he

added Woods as a completely new defendant. Rule 15(c)(3) therefore

affords Jackson no relief, his remaining claims against Woods do

not relate back, and they are therefore dismissed as time-barred.

* * *

FedEx’s July 1, 2005 motion for summary judgment is granted

with respect to all claims except Jackson’s hostile work

environment claim under Title VII, § 1981, and the TCHRA. Jackson

is given 20 days from the date of this memorandum opinion and order

to file a memorandum in which he states any basis on which he

relies to contend that his TCHRA-based termination claim and his

claim for intentional infliction of emotional distress should not

be dismissed on the grounds the court has raised sua sponte.

 

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Woods’ November 29, 2005 motion for judgment on the pleadings or

for summary judgment is granted, and all of Jackson’s claims

against him are dismissed with prejudice by Rule 54(b) final

judgment filed today.

SO ORDERED.

March 14, 2006.

_________________________________

SIDNEY A. FITZWATER

UNITED STATES DISTRICT JUDGE

 

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