IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

KAY ANN WOOTEN, et al., §

 §

Plaintiffs, §

 § Civil Action No. 3:04-CV-1196-D

VS. §

 §

FEDERAL EXPRESS CORPORATION, §

 §

Defendant. §

MEMORANDUM OPINION

 AND ORDER 

The court revisits this case to address grounds for summary

judgment that it raised sua sponte.

I

The background facts and procedural history of this case are

set out at length in the court’s opinion that decided the motion

for summary judgment of defendant Federal Express Corporation

(“FedEx”) and need not be repeated. See Wooten v. Fed. Express

Corp., 2007 WL 63609, at *1-*3 (N.D. Tex. Jan. 9, 2007)(Fitzwater,

J.) (“Wooten I”). In Wooten I the court raised sua sponte that

FedEx is entitled to summary judgment dismissing plaintiffs’

2001-based discriminatory failure to promote claims under 42 U.S.C.

§ 1981 because the claims are time-barred, and plaintiffs’ Texaslaw claims for intentional infliction of emotional distress because

plaintiffs do not rely on acts independent of their claims for race

discrimination, hostile work environment, and retaliation. See

Wooten I, 2007 WL 63609, at *14 (addressing § 1981 discriminatory

failure to promote claims); id. at *24 (addressing intentional

 

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1

The court stated that if it did not dismiss the claims after

receiving plaintiffs’ brief, it would permit FedEx to file a reply.

The court is opting, however, not to follow that procedure.

Because plaintiffs do not contest dismissal of their claims for

intentional infliction of emotional distress, no reply is

necessary. And FedEx never argued that a two-year limitations

period applied to plaintiffs’ 2001-based promotion claims; it

assumed (correctly) that the limitations period was four years.

Moreover, the court is today addressing the merits of the 2001-

based promotion claims based on the original briefing, in which

FedEx had opportunities to file opening and reply briefs.

Accordingly, the court will not delay its ruling on these claims in

order to receive further briefing.

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infliction of emotional distress). The court gave plaintiffs Kay

Ann Wooten (“Katie”) and Ronnie Lemuel Wooten (“Ronnie”) an

opportunity to file a brief stating any basis to avoid dismissal of

their 2001-based failure to promote claims and their claims for

intentional infliction of emotional distress. Plaintiffs have

filed their brief,1 and the court now decides whether to grant

summary judgment dismissing their claims for intentional infliction

of emotional distress and their 2001-based promotion claims.

II

Plaintiffs state in a January 11, 2007 letter to the clerk

that they do not intend to file a brief opposing dismissal of their

claims for intentional infliction of emotional distress.

Accordingly, the court grants summary judgment dismissing these

claims based on the reasoning set out in Wooten I. See Wooten I,

2007 WL 63609, at *24.

 

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III

The court now considers whether plaintiffs’ 2001-based

promotion claims brought under 42 U.S.C. § 1981 are time-barred

and, if not, whether FedEx is entitled to summary judgment

dismissing the claims on some other basis.

A 

The court in Wooten I raised sua sponte that FedEx is entitled

to summary judgment dismissing plaintiffs’ 2001-based promotion

claims because a two-year rather than four-year limitations period

applied. Wooten I, 2007 WL 63609, at *14. Relying on Goodman v.

Lukens Steel Co., 482 U.S. 656, 660 (1987), and National Ass’n of

Government Employees v. City Public Service Board, 40 F.3d 698, 713

n.22 (5th Cir. 1994), the court applied the two-year limitations

period for personal injury tort actions under Texas law. Wooten I,

2007 WL 63609, at *4 n.9 (citing Tex. Civ. Prac. & Rem. Code Ann.

§ 16.003(a)(Vernon 2005)). Plaintiffs correctly point out in their

brief that, under Jones v. R&R Donnelly & Sons Co., 541 U.S. 369,

382 (2004), the four-year limitations period established by 28

U.S.C. § 1968 applies to § 1981 actions based on post-contractual

employment discrimination claims made under the 1991 Civil Rights

Act amendments to § 1981. As the court noted in Wooten I, FedEx

never contested that the limitations period applicable to

plaintiffs’ § 1981 claims is four years. See Wooten I, 2007 WL

63609, at *4 n.9 (“FedEx states that plaintiffs’ ‘§ 1981 race

 

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2“CEV points are a composite score based on an employee’s

continuous service with FedEx and [his] performance review scores.”

Wooten I, 2007 WL 63609, at *14 n.23 (quoting D. Br. 24).

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discrimination claims are timely as to any discrete events that

occurred before June 3, 2000.’ FedEx appears to assume that a

four-year limitations period applies, because June 3, 2000 precedes

by four years the date plaintiffs filed this suit: June 3, 2004.”

(citation omitted)). Accordingly, the court agrees with plaintiffs

that their § 1981 claims are governed by a four-year limitations

period, and it declines to grant summary judgment dismissing any of

their § 1981 claims as time-barred.

B

Because the court is not dismissing plaintiffs’ 2001-based

promotion claims based on limitations, it must now reach the

grounds that FedEx raised in its original summary judgment motion

for dismissing these claims.

Plaintiffs allege that each was denied a promotion to the

position of full-time, non-job share RTD. See Wooten I, 2007 WL

63609, at *14. The first such denial occurred in 2001, when both

Katie and Ronnie bid on the same position. Katie was denied a

promotion a second time in 2002, and Lester Newkirk (“Newkirk”), a

non-work group employee with more CEV points,2 was given the

position on which she bid. To show pretext, plaintiffs argued that

Katie was better qualified than Newkirk because she came from

 

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3In Wooten I the court rejected FedEx’s arguments that

plaintiffs had failed to establish a prima facie case with respect

to their 2002-based failure to promote claim. See Wooten I, 2007

WL 63609, at *14-*15 (holding that plaintiffs’ offer letter time

commitment, if any, had elapsed, and that FedEx had failed to show

that position was mere “lateral transfer”).

4

FedEx’s only apparent argument regarding whether plaintiffs

were qualified for the position concerns their being subject to

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within the work group. See Wooten I, 2007 WL 63609, at *15.3 The

court concluded that there is a genuine issue of material fact

whether FedEx policy permitted someone outside the work group to

compete for the position. It reasoned that, if the competitors

were limited to those within the work group, then Newkirk’s

superior CEV point total would not have made him more qualified for

the position. Therefore, although there was evidence in the record

that would permit the jury to find that Newkirk was from the

geographical area that made him eligible to bid on the new

position, the court could not grant summary judgment dismissing

Katie’s 2002-based failure to promote claim under § 1981. Id.

The same reasoning applies to plaintiffs’ 2001-based failure

to promote claims, except that FedEx also posits that plaintiffs

were subject to a 12-month job share time commitment that had not

yet elapsed at the time they applied for the position in 2001.

Plaintiffs rely on Katie’s deposition testimony to show that the

job offer letter only required a six-month time commitment, which

would have elapsed by the time plaintiffs applied for the

position.4

 FedEx relies on an offer letter addressed to Katie; it

 

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time commitment provisions in their job share offer letters. 

5FedEx relies, inter alia, on the “Job Change Application”

form, in which Brendstrup checked the box stating that he was

“unsure of some requirements and request review by the recruiter,”

and wrote that “at this time we are not in agreement on Katie’s

eligibility to bid on this posting.” D. App. 181.

6The court recounts the evidence in a light favorable to

plaintiffs as the summary judgment nonmovants and draws all

reasonable inferences in their favor. E.g., U.S. Bank Nat’l Ass’n

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does not point the court to evidence that Ronnie was subject to the

same or to a similar letter. Having considered the evidence, the

court holds that there is a genuine issue of material fact as to

whether plaintiffs were subject to a job share time commitment that

would have disqualified them from applying for the full-time RTD

position in 2001. Mark Brendstrup’s (“Brendstrup’s”) deposition

testimony and the job application form upon which FedEx relies is

not sufficient to establish that plaintiffs were still subject to

the job share time commitment at the time that they applied for the

full time RTD position.5 Accordingly, the court cannot say that

plaintiffs have failed to establish a prima facie case.

To show that FedEx’s proffered legitimate non-discriminatory

reason is pretextual, plaintiffs contend that the employee who was

hired instead of them was not qualified for the position. The

position for which plaintiffs bid in 2001 was ultimately given to

Ricky Busch (“Busch”), a FedEx employee with more CEV points than

either plaintiff, but whom plaintiffs allege was ineligible for the

position because he came from outside the work group.6

 As the

 

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v. Safeguard Ins. Co., 422 F.Supp.2d 698, 701 n.2 (N.D. Tex. 2006)

(Fitzwater, J.) (citing Clift v. Clift, 210 F.3d 268, 270 (5th Cir.

2000)).

7Plaintiffs refer specifically to Ronnie’s receipt of

performance reminders and subsequent termination on December 16,

2003. See Ps. Jan. 18, 2007 Br. 5 n.2.

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court has already held concerning Katie’s 2002-based claim, if

competitors were limited to those within the work group, then

Busch’s superior CEV point total would not have made him more

qualified for the position. Although there is evidence in the

record that would permit the jury to find that Busch, a “station

run side” employee, worked in the same geographical area and under

the same Senior Manager as did plaintiffs, the court must deny

summary judgment as to plaintiffs’ 2001-based failure to promote

claim under § 1981 because there is a genuine issue of material

fact as to whether FedEx policy permitted someone from outside the

workgroup to bid for the position.

IV

In their brief in response to Wooten I, plaintiffs attempt to

apply the four-year § 1981 limitations period to their 2003-based

disparate discipline claim,7

 suspension claim, 2000- through 2002-

based retaliation claims, hostile work environment claim, and to

Katie’s 2002 complaint concerning Brendstrup. This attempt exceeds

the scope of the court’s decision in Wooten I and is unavailing in

any event. 

The court dismissed all of these claims either on the merits

 

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8Moreover, plaintiffs’ disparate discipline claim, to the

extent based on Ronnie’s receipt of performance reminders in 2003,

would not be barred under either a two- or four-year limitations

period because plaintiffs filed suit on June 3, 2004.

9Plaintiffs’ § 1981-based retaliation claims grounded on their

terminations and on the alleged retaliatory actions taken by Vicki

Peyton against Ronnie survived summary judgment. See Wooten I,

2007 WL 63609, at *18-*19. Plaintiffs do not refer to any

retaliatory conduct that occurred between June 3, 2003 and June 3,

2002 in their argument in response to FedEx’s motion for summary

judgment. They cannot now revive the claim with unspecified and

newly alleged conduct.

Plaintiffs’ apparent request that the court apply the fouryear limitations period set out in 28 U.S.C. § 1968 to Katie’s

Title VII-based retaliation claim lacks support and is rejected.

Moreover, Katie’s Title-VII based retaliation claim was dismissed

for failure to exhaust. See Wooten I, 2007 WL 63609, at *8.

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or for unrelated procedural reasons. It did not dismiss them based

on limitations. The court held that plaintiffs’ disparate

discipline claim——to the extent based on Ronnie’s receipt of

performance reminders and subsequent termination——essentially

merged with plaintiffs’ claim of discriminatory termination.8 See

Wooten I, 2007 WL 63609, at *4 n.8. The court dismissed Ronnie’s

suspension-based claim on unrelated procedural grounds. See id. at

*15 (citing plaintiffs’ failure to respond to FedEx’s motion for

summary judgment insofar as it pertained to Ronnie’s one-week

suspension claim as a basis for accepting FedEx’s evidence as true

and undisputed). The court rejected in part plaintiffs’ § 1981-

based retaliation claims on the merits, after considering all the

evidence presented.9 The court likewise did so with respect to

plaintiffs’ § 1981 hostile work environment claim. See id. at *23

 

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(holding that plaintiffs are unable to establish any harassment by

coworkers was sufficiently “severe and pervasive”). Finally, the

court did not reject Katie’s August 2002 complaint to manager

Brendstrup based on limitations. Regardless of the nature of the

claim that this conduct is meant to support, it would not be barred

under either a two- or four-year limitations period, in view of the

fact that plaintiffs filed suit in June 2004.

* * *

Accordingly, the court dismisses plaintiffs’ claim for

intentional infliction of emotional distress, and it holds that

plaintiffs’ 2001-based failure to promote claims brought under

§ 1981 survive summary judgment. The court rejects plaintiffs’

attempts to extend the application of the four-year limitations

period to revive claims dismissed in Wooten I.

SO ORDERED.

January 31, 2007.

_________________________________

SIDNEY A. FITZWATER

UNITED STATES DISTRICT JUDGE

 

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