1

 WMC is a wholesale mortgage company with offices in California, Texas, Florida, and New York. The

company does not make loans directly to consumers. Instead, it works with loan brokers who provide business to WMC.

(See Def. MSJ App., Exh. A at 2, ¶ 4).

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

DEFARRON KEITH HILL §

§

Plaintiff, §

§

VS. § NO. 3-04-CV-1123-D 

§

WMC MORTGAGE CORP. §

§

Defendant. §

FINDINGS AND RECOMMENDATION OF THE

UNITED STATES MAGISTRATE JUDGE

Defendant WMC Mortgage Corp. ("WMC") has filed a motion for summary judgment in this

pro se civil action alleging race discrimination under Title VII of the Civil Rights Act of 1964, as

amended ("Title VII"), 42 U.S.C. § 2000e, et seq., and breach of contract under Texas law. For the

reasons stated herein, the motion should be granted. 

I.

On or about May 21, 2003, Plaintiff Defarron Keith Hill, an African-American, interviewed

for a job with WMC at its office in Addison, Texas. (Def. MSJ App., Exh. B at 1, ¶¶ 3-4 & Exh. A1).1

 At that interview, Vivian Forr allegedly told plaintiff that his employment would be guaranteed

for the first year and that he "would not suffer termination so long as he obeyed the rules of the

company." (Plf. First Am. Pet. at 3, ¶ 7). Plaintiff eventually was offered a position as an Internal

Sales Support Representative. (Def. MSJ App., Exh. A-2). The offer letter, dated June 6, 2003,

states in pertinent part:

 

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2

 Federal subject matter jurisdiction is proper because plaintiff's race discrimination claim "aris[es] under the

Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331.

The preceding terms of your employment are not a contract, and do

not supercede the fact that WMC Mortgage Corp. hires its employees

on an at-will basis. At-will means that either you or WMC Mortgage

Corp. can terminate the employment relationship at anytime, for any

reason and without giving notice.

(Id.). Plaintiff signed the letter acknowledging and agreeing to the terms thereof. (Id.).

Shortly after commencing his employment on June 16, 2003, plaintiff began to experience

problems with his supervisors and outside brokers. The most troublesome and recurring complaint

was that plaintiff was abusive, rude, and unhelpful to brokers, who are the "lifeblood of WMC's

business." (Id., Exh. A at 4, ¶ 22). Tracy Greer, a Business Development Representative who

worked closely with plaintiff, described him as "very unprofessional," "a smartass," and "a cancer

to WMC and my team." (Id., Exh. A-4). On September 5, 2003, a disgruntled broker told defendant

he would no longer do business with WMC because plaintiff was rude and uncooperative when

questioned about his progress on a loan package. (Id., Exh. A-5). Plaintiff was terminated by the

company four days later. (Id., Exh. A at 4, ¶ 25 & Exh. C at 2, ¶ 7). He was replaced by another

African-American who still works for defendant. (Id., Exh. A at 4, ¶ 28).

Believing he had been the victim of race discrimination, plaintiff filed a formal charge of

discrimination with the Equal Employment Opportunity Commission ("EEOC"). The EEOC found

no evidence of discrimination and issued a right-to-sue letter. (See Plf. First Am. Pet. at 2, ¶ 5). On

December 31, 2003, plaintiff, appearing pro se, filed suit in Texas state court for race discrimination

under Title VII and breach of contract. Defendant timely removed the case to federal court and now

seeks summary judgment as to all claims and causes of action.2

 The issues have been briefed by the

parties and the motion is ripe for determination.

 

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3

 In his response, plaintiff objects to certain statements contained in the declarations of Tammi Burt, Vivian

Forr, and Fred Brewster, as well as various documents appended to those declarations. (See Plf. MSJ Resp. at 3-5). To

the extent the court relies on any of this evidence, it is for background information only. None of the evidence objected

to by plaintiff is relevant to the disposition of the summary judgment motion. Consequently, the objections are overruled

as moot. See Anderson v. Park Place Motorcars, Ltd., 159 F.Supp.2d 391, 393 (N.D. Tex. 2001).

II.

Summary judgment is proper when there is no genuine issue as to any material fact and the

movant is entitled to judgment as a matter of law. FED.R.CIV.P. 56(c); Celotex Corp. v. Catrett, 477

U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). A dispute is "genuine" if the issue

could be resolved in favor of either party. Matsushita Electric Industrial Co. v. Zenith Radio Corp.,

475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). A fact is "material" if it might

reasonably affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106

S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986).

A summary judgment movant who does not have the burden of proof at trial must point to

the absence of a genuine fact issue. Duffy v. Leading Edge Products, Inc., 44 F.3d 308, 312 (5th Cir.

1995). The burden then shifts to the nonmovant to show that summary judgment is not proper.

Duckett v. City of Cedar Park, 950 F.2d 272, 276 (5th Cir. 1992). The parties may satisfy their

respective burdens by tendering depositions, affidavits, and other competent evidence. Topalian v.

Ehrman, 954 F.2d 1125, 1131 (5th Cir), cert. denied, 113 S.Ct. 82 (1992). All evidence must be

viewed in the light most favorable to the party opposing the motion. Rosado v. Deters, 5 F.3d 119,

122 (5th Cir. 1993). However, conclusory statements and testimony based merely on conjecture or

subjective belief are not competent summary judgment evidence. Topalian, 954 F.2d at 1131.3

A.

Defendant first argues that plaintiff cannot establish the essential elements of his race

discrimination claim. In order to prove race discrimination under Title VII, plaintiff must establish

 

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a prima facie case of intentional discrimination. Texas Dep't of Community Affairs v. Burdine, 450

U.S. 248, 252-53, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207 (1981); McDonnell Douglas Corp. v.

Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973). This requires plaintiff to

show that: (1) he is a member of a protected class; (2) he was qualified for his position; (3) he was

subjected to an adverse employment action; and (4) either he was replaced by someone outside the

protected class or similarly situated employees outside his protected class were treated more

favorably. See Ward v. Bechtel Corp., 102 F.3d 199, 202 (5th Cir. 1997); Thomas v. TPI Staffing,

Inc., 2005 WL 1562462 at *3 (S.D. Tex. Jun 29, 2005).

Once plaintiff establishes a prima facie case, a presumption of discrimination arises. St.

Mary's Honor Center v. Hicks, 509 U.S. 502, 506, 113 S.Ct. 2742, 2747, 125 L.Ed.2d 407 (1993);

Burdine, 101 S.Ct. at 1094. The burden then shifts to the defendant to articulate a legitimate,

nondiscriminatory reason for its employment decision. Hicks, 113 S.Ct. at 2749; see also Rachid

v. Jack In The Box, Inc., 376 F.3d 305, 312 (5th Cir. 2004). This is only a burden of production, not

persuasion. Once a legitimate explanation is proffered by the defendant, the plaintiff must prove that

the reason given is merely pretextual. Hicks, 113 S.Ct. at 2749; McDonnell Douglas, 93 S.Ct. at

1825.

In Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097, 147 L.Ed.2d

105 (2000), a unanimous Supreme Court clarified the standard applicable to the final step of the

McDonnell Douglas burden-shifting analysis. Reeves rejected the notion that a plaintiff must always

introduce additional evidence of discrimination, over and above his prima facie case, to prove that

the employer's proffered explanation is false:

Proof that the defendant's explanation is unworthy of credence is

simply one form of circumstantial evidence that is probative of

intentional discrimination, and it may be quite persuasive. In 

 

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appropriate circumstances, the trier of fact can reasonably infer from

the falsity of the explanation that the employer is dissembling to

cover up a discriminatory purpose. Such an inference is consistent

with the general principle of evidence law that the factfinder is

entitled to consider a party's dishonesty about a material fact as

affirmative evidence of guilt. Moreover, once the employer's

justification has been eliminated, discrimination may well be the

most likely alternative explanation, especially since the employer is

in the best position to put forth the actual reason for its decision.

Thus, a plaintiff's prima facie case, combined with sufficient

evidence to find that the employer's asserted justification is false,

may permit the trier of fact to conclude that the employer unlawfully

discriminated.

Id., 120 S.Ct. at 2108-09 (citations and punctuation omitted). The Fifth Circuit has since repudiated

its "pretext plus" standard, which required a plaintiff to introduce additional, independent evidence

of discrimination at the final step of the burden-shifting analysis, as inconsistent with Reeves. See

Laxton v. Gap Inc., 333 F.3d 572, 578 (5th Cir. 2003); Ratliff v. City of Gainesville, Texas, 256 F.3d

355, 361-62 & n. 7 (5th Cir. 2001); Blow v. City of San Antonio, Texas, 236 F.3d 293, 297-98 (5th

Cir. 2001); Evans v. City of Bishop, 238 F.3d 586, 591-92 (5th Cir. 2000); Russell v. McKinney

Hospital Venture, 235 F.3d 219, 223 (5th Cir. 2000). But see Vadie v. Mississippi State University,

218 F.3d 365, 373 n. 23 (5th Cir. 2000), cert. denied, 121 S.Ct. 859 (2001) (commenting that

"pretext plus" standard is generally consistent with Reeves ). Thus, where a plaintiff establishes a

prima facie case of discrimination, he may survive summary judgment merely by showing that the

explanation proffered by the defendant for its employment decision is "unworthy of credence."

Burdine, 101 S.Ct. at 1095, citing McDonnell Douglas, 93 S.Ct. at 1825-26.

1.

The court initially observes that plaintiff makes no attempt to prove that he was replaced by

someone outside his protected class or that similarly situated employees outside his protected class

were treated more favorably. The unchallenged evidence establishes that plaintiff was replaced by

 

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4

 Defendant also argues that plaintiff was not qualified for the position he held. (Def. MSJ Br. at 17).

However, the record shows that plaintiff has a bachelor's degree from a four-year university, an MBA, and several years

of work experience in the mortgage industry. (See Def. MSJ App., Exh. A-1). This at least creates a fact issue as to

whether plaintiff was qualified to work as a Internal Sales Support Representative.

Adrian Harry, an African American. (Def. MSJ App., Exh. A at 4, ¶ 28). Although plaintiff alleges

that "other similarly situated whites were treated more favorably then [sic] Plaintiff[,]" (see Plf. MSJ

Resp. at 6), he offers no evidence to support that assertion. See Moore v. United Parcel Service,

2004 WL 2339792 at *6 (N.D. Tex. Oct. 15, 2004) (granting summary judgment in favor of

employer where plaintiff failed to present admissible evidence showing that two white employees

received more favorable treatment for similar violations of company policy). Thus, plaintiff cannot

establish a prima facie case of race discrimination.4

2.

Nor has plaintiff demonstrated that the explanation proffered by defendant for its

employment decision was pretextual. Defendant maintains it terminated plaintiff for "[m]aking

malicious, false, or derogatory statements that may damage the integrity or reputation of the

Co[mpany], its employees or customers" and for exhibiting "[r]ude or discourteous conduct toward

supervisor, fellow employees, customers or visitors." (Def. MSJ App., Exh. A at 4, ¶ 26). Courts

have held that this constitutes a legitimate, nondiscriminatory reason for terminating an employee.

See Rachid, 376 F.3d at 312; Thornton v. Neiman Marcus, 850 F.Supp. 538, 544 (N.D. Tex. 1994).

In order to survive summary judgment, plaintiff must adduce evidence that at least suggests that

defendant's explanation is "unworthy of credence." Reeves, 120 S.Ct. at 2108. Plaintiff attempts

to discharge this burden by simply denying he was rude, unprofessional, or uncooperative in his

dealings with supervisors, co-workers, and brokers. (See Plf. MSJ Resp., Exh. 1). He specifically

denies the accusations made by the broker which led to his termination. (Id., Exh. 1 at ¶ 9).

 

 

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5

 The court notes that plaintiff does not object to this part of Forr's declaration. (See Plf. MSJ Resp. at 4, ¶ 13).

However, the relevant inquiry at this stage of the McDonnell Douglas test is not whether plaintiff

was actually rude, discourteous, or uncooperative. Rather, the issue is whether defendant had a good

faith belief that the complaints made against plaintiff were true and based its termination decision

on that belief. See Waggoner v. City of Garland, Texas, 987 F.2d 1160, 1165 (5th Cir. 1993);

Thomas, 2005 WL 1562462 at *4. Plaintiff offers no evidence, other than his own self-serving

denials, to suggest that the reason proffered by defendant for its employment decision was false or

that race was a motivating factor in his termination. Therefore, defendant is entitled to summary

judgment with respect to plaintiff's Title VII claim.

B.

Defendant further contends that plaintiff cannot establish the elements of his contract claim

under Texas law. In particular, defendant maintains that Vivian Forr did not have the authority to

guarantee plaintiff's employment for the first year and that, in any event, the oral promise allegedly

made by Forr is too vague and is not enforceable under the parole evidence rule. Plaintiff does not

even address this contract claim in his response, much less adduce evidence to establish a genuine

issue of material fact for trial. Under such circumstances, the court is permitted to accept defendant's

evidence as undisputed. Tutton v. Garland Independent School Dist., 733 F.Supp. 1113, 1117 (N.D.

Tex. 1990) (Fitzwater, J.). In her declaration, Forr states that she lacked any authority to make an

oral contract with plaintiff for any term of employment. (Def. MSJ App., Exh. B at 2, ¶ 7). Forr

explained this to plaintiff and told him any hiring decisions would be made by her manager. (Id.,

Exh. B at 1, ¶ 5).5

 Without either actual or apparent authority, there can be no employment contract.

See Boyce v. Bank of America Technology and Operations, Inc., 2004 WL 2545015 at *12 (N.D.

Tex. Nov 10, 2004). Defendant is entitled to summary judgment as to this claim.

 

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RECOMMENDATION

Defendant's motion for summary judgment should be granted.

A copy of this report and recommendation shall be served on all parties in the manner

provided by law. Any party may file written objections to the recommendation within 10 days after

being served with a copy. See 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72(b). The failure to file

written objections will bar the aggrieved party from appealing the factual findings and legal

conclusions of the magistrate judge that are accepted or adopted by the district court, except upon

grounds of plain error. See Douglass v. United Services Automobile Ass'n, 79 F.3d 1415, 1417 (5th

Cir. 1996).

DATED: August 23, 2005.

 

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