1 Adeleke’s complaint names Comcast Cable Communication as the

defendant. See Original Complaint (“Complaint”) at 1. Comcast asserts, however,

that it has been incorrectly named and should be referred to as Comcast Cable of

Plano, LP. See Defendant’s Motion for Summary Judgment at 1. 

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

OLUMUYIWA AYODEJI ADELEKE,

Plaintiff,

VS.

COMCAST CABLE

COMMUNICATION,

Defendant.

)

)

)

) CIVIL ACTION NO.

)

) 3:05-CV-1720-G

)

) ECF

)

)

MEMORANDUM OPINION AND ORDER

Before the court is the motion for summary judgment of the defendant,

Comcast Cable Communication1

 (“Comcast”), on the claims asserted against it by the

plaintiff, Olumuyiwa A. Adeleke (“Adeleke”). For the reasons stated below,

Comcast’s motion for summary judgment is granted.

 

 Case 3:05-cv-01720-G Document 42 Filed 05/18/06 Page 1 of 14 PageID 680
2 On December 13, 2005, Adeleke filed amended pleadings incorrectly

labeled as supplemental pleadings. Because these “supplemental” pleadings

attempted to set forth facts that had occurred before August 25, rather than facts that

had occurred since that date, Plaintiff’s Supplemental Pleadinds [sic] at 1, they were

stricken by order of the court on January 23, 2006. 

Meanwhile, on December 27, 2005, Adeleke filed a charge of retaliation

with the E.E.O.C. and petitioned the court for leave to file supplemental pleadings

based on this new E.E.O.C. charge. See generally Plaintiff’s Motion for Leave to

Supplement Its [sic] EEOC Charge. Because in the resulting “supplemental”

pleadings, Adeleke again attempted to amend his original complaint with facts alleged

to have occurred prior to August 25, 2005, his second supplemental pleadings were

unfiled. See Order, January 31, 2006. 

- 2 -

I. BACKGROUND

This is an employment discrimination case, filed by Adeleke pro se under the

provisions of Title VII of the Civil Rights Act of 1964, as amended. In his original

complaint, filed August 25, 2005, Adeleke alleges that Comcast discharged him from

his position as Cable Technician by reason of his religion. See 42 U.S.C. § 2000e2(a)(1). While this case was pending, Adeleke also filed, on December 27, 2005, a

retaliation claim with the Texas Workforce Commission, Civil Rights Division, and

the Equal Employment Opportunity Commission (“E.E.O.C.”), but that claim was

not asserted in time to meet the deadline for amending pleadings imposed by the

court’s scheduling order in this case and was thus unfiled on January 31, 2006.2

 

On February 7, 2006, Comcast filed this motion for summary judgment on

Adeleke’s disparate treatment claim on the ground that the undisputed evidence

showed that Adeleke was neither “qualified” as a field technician nor “replaced or

 

 Case 3:05-cv-01720-G Document 42 Filed 05/18/06 Page 2 of 14 PageID 681
3 The disposition of a case through summary judgment “reinforces the

purpose of the Rules, to achieve the just, speedy, and inexpensive determination of

actions, and, when appropriate, affords a merciful end to litigation that would

otherwise be lengthy and expensive.” Fontenot v. Upjohn Co., 780 F.2d 1190, 1197

(5th Cir.1986).

- 3 -

treated any differently than others outside of his asserted protected class.” 

Defendant’s Brief in Support of Motion for Summary Judgment (“Motion”) at 17. 

Comcast additionally moved for summary judgment on Adeleke’s co-worker and

supervisor harassment claims. Motion at 20-27.

II. ANALYSIS

A. Evidentiary Burdens on Summary Judgment

Summary judgment is proper when the pleadings and evidence before the court

show that no genuine issue exists as to any material fact and that the moving party is

entitled to judgment as a matter of law. FED. R. CIV. P. 56(c).3 The movant makes

such a showing by informing the court of the basis of its motion and by identifying

the portions of the record which reveal there are no genuine material fact issues. 

Celotex Corporation v. Catrett, 477 U.S. 317, 323 (1986). “[T]he substantive law will

identify which facts are material.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986). A genuine issue of material fact exists “if the evidence is such that a

reasonable jury could return a verdict for the nonmoving party.” Id. The pleadings,

depositions, admissions, and affidavits, if any, must demonstrate that no genuine

issue of material fact exists. FED. R. CIV. P. 56(c).

 

 Case 3:05-cv-01720-G Document 42 Filed 05/18/06 Page 3 of 14 PageID 682
- 4 -

Once the movant makes this showing, the nonmovant must then direct the

court's attention to evidence in the record sufficient to establish that there is a

genuine issue of material fact for trial. Celotex, 477 U.S. at 323-24. To carry this

burden, the “opponent must do more than simply show . . . some metaphysical

doubt as to the material facts.” Matsushita Electric Industrial Co., Ltd. v. Zenith Radio

Corp., 475 U.S. 574, 586 (1986). Instead, the nonmovant must show that the

evidence is sufficient to support a resolution of the factual issue in his favor. 

Anderson, 477 U.S. at 249.

While all of the evidence must be viewed in a light most favorable to the

nonmovant, id. at 255 (citing Adickes v. S.H. Kress & Company, 398 U.S. 144, 158-59,

90 S.Ct. 1598, 26 L.Ed.2d 142 (1970)), neither conclusory allegations nor

unsubstantiated assertions will satisfy the nonmovant’s summary judgment burden.

Calbillo v. Cavender Oldsmobile, Inc., 288 F.3d 721, 725 (5th Cir.2002) (citing Little v.

Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994) (en banc)). Summary judgment

in favor of the movant is proper if, after adequate time for discovery, the motion’s

opponent fails to establish the existence of an element essential to his case and as to

which he will bear the burden of proof at trial. Celotex, 477 U.S. at 322-23.

B. Religious Discrimination

A plaintiff filing a claim for religious discrimination under Title VII must prove

a prima facie case showing that the plaintiff “(1) is a member of a protected class;

 

 Case 3:05-cv-01720-G Document 42 Filed 05/18/06 Page 4 of 14 PageID 683
4 Comcast has interpreted Adeleke’s complaint as asserting a disparate

treatment religious discrimination claim. Motion at 16. It is also possible, however,

to interpret the complaint as alleging that Adeleke was discharged because of his

religion. See Complaint at 7 (”the employer [Comcast Cable] terminated or

discharged my employment because of my religious beliefs . . . .”). To establish a

prima facie case on such a claim, Adeleke would have to show that (1) he has a bona

fide religious belief that conflicted with an employment requirement; (2) the

employer was informed of that belief; and (3) he was discharged for failing to comply

with the conflicting employment requirement. George v. Home Depot Incorporated, 51

Fed. Appx. 482, (5th Cir. 2002); Bruff v. North Mississippi Health Services, Inc.,

244 F.3d 495, 499 n.9 (5th Cir.), cert. denied, 534 U.S. 952 (2001); Weber v. Roadway

Express, Inc., 199 F.3d 270, 273 (5th Cir. 2000). Even if Adeleke’s claim of religious

discrimination is interpreted in this fashion, Comcast is still entitled to summary

judgment, for there is no evidence that Comcast was ever informed of Adeleke’s

religious beliefs. See Reed v. Great Lakes Companies, Inc., 330 F.3d 931, 934 (7th Cir.

(continued...)

- 5 -

(2) was qualified for [his] position; (3) was subject to an adverse employment action;

and (4) was replaced by someone outside the protected class.” Shackelford v. Deloitte &

Touche, LLP, 190 F.3d 398, 404 (5th Cir. 1999); Rubinstein v. Administrators of the

Tulane Educational Fund, 218 F.3d 392, 399 (5th Cir. 2000) (applying to religious

discrimination cases the prima facie case for racial discrimination set forth in

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)), cert. denied, 532 U.S.

937 (2001); see also McCracken v. Exxon Mobil Corporation, Inc., No. A. H-03-5726,

2006 WL 456252, at *1 (S.D. Tex. February 23, 2006). 

1. Comcast’s Motion for Summary Judgment

Comcast attacks two of the elements of Adeleke’s prima facie case, viz., (1) that

Adeleke was not qualified for his position and (2) that Adeleke has not shown that he

was replaced by someone outside the protected class. Motion at 17-20.4

 In support

 

 Case 3:05-cv-01720-G Document 42 Filed 05/18/06 Page 5 of 14 PageID 684
4

(...continued)

2003) (“It is difficult to see how an employer can be charged with discrimination on

the basis of an employee’s religion when he doesn’t know the employee’s religion

. . .”).

- 6 -

of its motion for summary judgment, Comcast has included affidavits from three

employees present at Adeleke’s termination: Human Resources Manager Emma

Smith, Technical Operations Supervisor Shane Reese, and former Technical

Operations Manager Marshall Dudley. See Appendix to Defendant’s Motion for

Summary Judgment (“Defendant’s Appendix”) at 1. Additionally, Comcast has

submitted discovery and oral deposition responses elicited from Adeleke. Id. 

At Comcast, cable technicians are evaluated by quantitative performance

standards. Adeleke’s evaluations, reflecting the poor quality of his work, are part of

the record. Defendant’s Appendix at 31, 43-44 ¶¶ 40-43. Adeleke’s rate of repeat

service calls, for example, was approximately twice the number expected from a cable

technician, and his missed appointments were eight times the expected number. Id.

at 72.

Additionally, a cable technician is required to perform well on the ComTech 2

practical exam. Id. at 3 ¶ 10. Adeleke failed this exam, including the failure to

perform a basic service call. Id. at 20, 43 ¶¶ 36-38.

Comcast also submitted evidence of numerous customer and supervisor

complaints against Adeleke during his training period. See id. at 3 ¶ 10, 14-22. 

These included complaints that Adeleke was not qualified for his position, based on

 

 Case 3:05-cv-01720-G Document 42 Filed 05/18/06 Page 6 of 14 PageID 685
- 7 -

his inability to handle the required responsibilities of a cable technician, including his

inability to resolve customer problems, provide true records, and to treat customers

and co-workers with respect, diligence and care. Id. His substandard performance

was documented in three separate corrective action reports, and each of these reports

was predicated upon multiple incidents of inappropriate conduct or substandard

performance. Additionally, these reports were all issued shortly after Adeleke came to

work as a cable technician, between February 21, 2005, and April 5, 2005. Id.

February 21, 2005, marked Adeleke’s first receipt of a corrective action report. 

Id. at 14. On that occasion, Adeleke, upon having difficulty communicating with a

customer, asked the customer whether he was a “Jap.” Id. Adeleke also indicated on

his performance records that a job was complete when it had not been finished, and

he failed to follow repeated requests to return company property within seven hours,

despite numerous phone calls. Id. On March 7, 2005, after Adeleke damaged

customer property and failed to complete two other jobs, Comcast warned him via his

second corrective action report that this was his “final written warning” and that any

further violation could result in “termination.” Id. at 17. Adeleke received his third

corrective action report on April 5, 2005. Id. at 18. This report, which included

incidents of substandard performance, falsification of records, customer complaints,

and uncooperative attitude, including originating and propagating a false report of

cable outage across an entire service area, sanctioned Adeleke with termination. Id. at

 

 Case 3:05-cv-01720-G Document 42 Filed 05/18/06 Page 7 of 14 PageID 686
5 Comcast points out that Adeleke has identified no non-Christians who

were treated more favorably than he was. Motion at 19.

- 8 -

18-19, 42 ¶ 35. In addition to affidavits supporting the reports, Comcast provided

admissions that Adeleke had the opportunity to -- but did not -- object to all three

corrective action reports. See id. at 117-18, 125, 130-32, 138-40. 

Despite the conduct of Adeleke described in the first two corrective action

reports, Comcast continued to train him on his job at Comcast. See id. at 5-6 ¶¶ 21-

25, 43 ¶ 39, 85. These training sessions included private educational sessions

between Adeleke and his supervisor, extension of the usual 90-day probationary and

training period, and responding to Adeleke’s difficulties with an intent to ameliorate

his performance. Id.

Comcast has carried its summary judgment burden of showing that there is no

genuine issue of material fact regarding Adeleke’s qualifications for the job and

whether persons outside the protected class were treated more favorably than

Adeleke. Therefore, the burden shifts to Adeleke -- as the nonmovant -- to

demonstrate that an issue of material fact exists with respect to these elements of his

claim.5 

2. Adeleke’s Response

Now that Comcast as the movant has carried its burden, Adeleke must direct

the court’s attention to evidence sufficient to establish that there is a genuine issue of

material fact, i.e., evidence that he was qualified as a Comcast cable technician or that

 

 Case 3:05-cv-01720-G Document 42 Filed 05/18/06 Page 8 of 14 PageID 687
- 9 -

non-Christians were treated more favorably than he was. To carry this burden,

Adeleke must show that the evidence is sufficient to support a resolution of the

factual issue in his favor. See Anderson, 477 U.S. at 249. Pleadings or other

unsubstantiated assertions will not meet this summary judgment burden. See

Calbillo, 288 F.3d at 725; Isquith for and on behalf of Isquith v. Middle South Utilities, Inc.,

847 F.2d 186, 199 (5th Cir.), cert. denied, 488 U.S. 926 (1988).

Adeleke provided no affidavits in support of his pleadings; therefore, the entire

contents of those pleadings are unsubstantiated and will not satisfy his summary

judgment burden. Isquith, 847 F.2d at 199. Adeleke’s response contains

unsubstantiated factual assertions by him, and they, too, fail to satisfy his summary

judgment burden. Calbillo, 288 F.3d at 725. Adeleke was granted leave to file a surreply, Order, filed March 24, 2006, but he still provided no evidence in affidavit

form.

Having reviewed the exhibits to Adeleke’s response, which are comprised

largely of photocopied documents, the court finds nothing that tends to demonstrate

the existence of an issue of material fact. They include copies of Adeleke’s test scores

and promotions that occurred prior to the dates in question. See Plaintiff’s Response

to Defendant’s Motion for Summary Judgment at G and H. These facts relate in part

of his qualifications to be a Comcast cable technician, but they do not refute the

evidence that he failed his ComTech2 practical exam. There is nothing in this series

 

 Case 3:05-cv-01720-G Document 42 Filed 05/18/06 Page 9 of 14 PageID 688
- 10 -

of photocopies tending to show that Adeleke was qualified to be a cable technician or

that non-Christians replaced Adeleke after his termination. Adeleke’s religion is not

mentioned at all in these documents. 

Adeleke has not met his burden of demonstrating that a material fact issue

exists on his claim of religious discrimination. Summary judgment must therefore be

entered in Comcast’s favor on this claim. 

C. Harassment Arising from a Hostile Work Environment Claims

Because the plaintiff is pro se, Comcast -- out of an abundance of caution --

seeks summary judgment on several claims of harassment not explicitly pleaded by

Adeleke. In this connection Comcast asserts that Adeleke’s complaint could be

construed as having alleged hostile work environment claims against both his coworkers and his supervisors. 

The elements of a hostile work environment claim against a co-worker are

“(1) the employee belongs to a protected group; (2) the employee was subjected to

unwelcome harassment; (3) the harassment complained of was based on [the

protected characteristic - i.e., religion]; (4) the harassment complained of affected a

term condition or privilege of employment; (5) the employer knew or should have

known of the harassment in question and failed to take prompt remedial action.” 

Celestine v. Petroleos de Venezuella SA, 266 F.3d 343, 353 (5th Cir. 2001). By contrast,

a hostile work environment claim of harassment against a supervisor need show only

 

 Case 3:05-cv-01720-G Document 42 Filed 05/18/06 Page 10 of 14 PageID 689
- 11 -

the first four elements. Id. The court will consider the co-worker and supervisor

complaints together. The burden shifting and evidentiary showings are the same as

those outlined above. 

1. Comcast’s Motion for Summary Judgment

For Adeleke’s possible claim of co-worker harassment, Comcast argues that

Adeleke has not demonstrated that an issue of material fact exists with respect to

Comcast’s knowledge, the fifth required element. Particularly, Adeleke admits that

he received documents containing the Comcast harassment policy and reporting

procedures, which give an employee the ability to complain to the human resources

manager about any discrimination. Defendant’s Appendix at 3-4, 23-27, 97, 141. 

Moreover, Adeleke never put Comcast on notice of any alleged religious

discrimination, because he never complained to anyone regarding any religiouslybased, co-worker harassment when it was alleged to be ongoing. Id. at 154-156. 

Because Comcast has met its burden of pointing out that there is no evidence to

support an element of Adeleke’s prima facie case for his claim of co-worker harassment

resulting in a hostile work environment, the burden on the motion shifts to Adeleke --

as the nonmovant -- to demonstrate that an issue of material fact does exist.

For Adeleke’s putative claim of supervisor harassment, Comcast argues that

there is no evidence to support the third element of a prima facie case: that the

complained-of harassment was based on religion. According to Comcast, the sole

 

 Case 3:05-cv-01720-G Document 42 Filed 05/18/06 Page 11 of 14 PageID 690
- 12 -

evidence of supervisor harassment motivated by religious animus is the failed

ComTech2 practical examination and the three corrective action reports. Motion at

24. The evidence Comcast presents in support of these allegations is supported

through Adeleke’s own admissions during his deposition. Defendant’s Appendix at

149-50. There is nothing in these documents to indicate that the multiple instances

of poor quality work by Adeleke or his disparaging treatment of co-workers or

customers had anything to do with Adeleke’s religion. For these reasons, Comcast

has satisfied its burden, as the movant for summary judgment, of pointing out the

lack of evidence to support at least one element of Adeleke’s putative harassment

claims, and the burden therefore shifts to Adeleke to demonstrate that an issue of

material fact exists with respect to those claims. 

2. Adeleke’s Response

Again, Adeleke provides no evidence in affidavit form, and there is nothing in

his pleadings that will meet Adeleke’s summary judgment burden. Calbillo, 288 F.3d

at 725; Isquith, 847 F.2d at 199. Therefore, the court will only consider the

documents as they tend to demonstrate an issue of material fact for the element of

notice (with respect to co-worker harassment) and harassment on the basis of religion

(for Adeleke’s claim of supervisor harassment) insofar as they may have risen to the

level of a hostile work environment.

 

 Case 3:05-cv-01720-G Document 42 Filed 05/18/06 Page 12 of 14 PageID 691
6 “The mysterious problem of the hispanic cleaner and ‘the hispanics’

have [sic] been a serious concern which, apart from the medical and psychological

problems it has caused my existence in the United States in the past 5 years, in other

[sic] to be on the safe side I have made up my mind to keep living with it. Whatever

their [Hispanics] agitations [secretly] might be which I strongly believed that it is

[sic] treasonable and treacherous against this great country. They have tormented

and tourtured [sic] my life beyond resistance. They subjected me to pervactive [sic]

demonic attacks which I can proof [sic] with only 3-5 delegated secret agents. They

will marvel at what they will be made to observe. This court will note that in

(continued...)

- 13 -

In the documents supporting Adeleke’s reply, there is evidence that he had

“the fear that I may lose my job.” Plaintiff’s Appendix M (Comcast 00238-39). 

There is, however, no mention of religion in these documents. Adeleke has submitted

evidence tending to support Comcast’s arguments on its motion for summary

judgment: that there is no religious aspect related to Adeleke’s job difficulties. 

Plaintiff’s Appendix at tabs P, Q. These documents show various unsigned

complaints about Adeleke’s negative work attitude, resistance to authority, and

various off-hand comments. Id. Moreover, they do not contain any mention of

Adeleke’s religion or any co-worker’s attitude, positive or negative, with respect to his

religion. Id. One document does contain a reference to a “spiritual thing” between

Adeleke and persons of Hispanic descent. Plaintiff’s Appendix at tab Q. This

document has supervisor Shane Reese’s name attached to it. Id. On further

inspection, however, and coupled with Adeleke’s counter-reply [sic] to Comcast’s

motion for summary judgment, this “spiritual thing” apparently has nothing to do

with Adeleke’s religion but is a different matter altogether.6

 

 

 Case 3:05-cv-01720-G Document 42 Filed 05/18/06 Page 13 of 14 PageID 692
6

(...continued)

Appendix---H. [sic] is a police report dated back to 2002. This report showed that I

have had previous report. [Note: The report shows that an unidentified person or

persons “egged,” or threw eggs at, presumably, the plaintiff’s car.] All these, [sic] ever

before I joined this defendant. This same problem came against me [sic] at Bank of

America in 2001 through S.L. [an individual with an Hispanic surname]. The same

problem came up at Dallas County Tax office through A. [an individual with an

Hispanic first name]. This problem at present is prevailing [sic] at my new job . . .

where the cleaners are all over me with their trash bin. I submitted a photo to the

Attorney of record’s office concerning the same problem at present. I was almost

going to lose this present job if not that majority of the co-employees are from

outside of this country. When this problem came against me at the Plano office,

solely because of the hostility prevailent [sic] against me among these employees,

though they witnessed how the cleaner was all over me and scrubbing my legs with

the mop stick yet, they betrayed me for retaliatory reasons and still took my job.” 

Plaintiff’s Counter-Reply [sic] to the Defendant’s Reply in this Motion for Summary

Judgment at 18-20.

- 14 -

Adeleke has failed to demonstrate an issue of material fact regarding

harassment or notice to his supervisors of any such harassment. His failure to do so

means that Comcast is entitled to summary judgment on whatever claims of

harassment Adeleke may be attempting to assert in this case.

III. CONCLUSION

For the foregoing reasons, Comcast’s motion for summary judgment on all of

Adeleke’s claims is GRANTED. 

SO ORDERED.

May 18, 2006.

 

 Case 3:05-cv-01720-G Document 42 Filed 05/18/06 Page 14 of 14 PageID 693