1

Defendant Westway Ford indicates in its motion that it was incorrectly named in Plaintiff’s suit as “West

Way Ford.” (MSJ at 1.) 

2

This filing appears to consist exclusively of a certificate of service, filed separately from Plaintiff’s

response to Defendants’ motion.

-1-

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

KENT WILLIAMS, §

§

Plaintiff, §

§ Civil Action No. 3:04-CV-2696-K

v. §

§

WESTWAY FORD1 and §

GEORGE HERRON, §

§

Defendants. § Pretrial Management

FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE

UNITED STATES MAGISTRATE JUDGE

Pursuant to the District Court’s Order of Reference, filed March 13, 2006, this case was

referred to this Court for pretrial management, including the determination of non-dispositive

motions and issuance of findings of fact and recommendations to the District Court on dispositive

motions. Before the Court are the following:

(1) Defendants’ Motion for Summary Judgment (“MSJ”), filed January 20, 2006;

(2) Appendix Filed in Support of Defendants’ Motion for Summary Judgment (“MSJ

App.”), filed January 20, 2006;

(3) Plaintiff[’s] Respon[se] to Summary Judgment,

2

 filed February 8, 2006;

(4) Plaintiff[’s] Respon[se] to Summary Judgment (“Resp.”), filed February 9, 2006;

(5) Defendants’ Objections and Motion to Strike Plaintiff’s Evidence Filed in Response

to Defendant’s Motion for Summary Judgment and Brief in Support Thereof,

filed February 24, 2006;

 

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(6) Defendants’ Reply Brief in Support of Their Motion to Dismiss (“MSJ Reply”), filed

February 24, 2006; 

(7) Plaintiff[’s] Objection to Defendants Motions to Strike Plaintiff [’s] Evidence Filed

in Response to Plai[n]tiff[’s] Motion for Summary Judgment, filed March 21, 2006;

(8) Plaintiff[’s] Reply Brief in Support of His Motion for Summary Judgment, filed

March 21, 2006;

(9) Defendants’ Motion to Strike Plaintiff’s “Objection to Defendants’ Motions to Strike

Plaintiff’s Evidence Filed in Response to Plaintiff’s Motion for Summary

Judgment[,]” filed March 27, 2006;

(10) Defendant’s Motion to Strike Plaintiff’s Sur-Reply in Opposition to Motion for

Summary Judgment, filed March 27, 2006;

(11) Plaintiff[’s] Motion to Strike Defendant’s Ob[j]ection to Plaintiff[’s] [E]vidence

[F]iled in [R]espon[s]e to Plaintiff[’s] [M]otion for [S]ummary Judgment: This is the

Plaintiff[’s] Sur-Reply, filed April 6, 2006; and 

(12) Defendants’ Motion to Strike Plaintiff’s Motion to Strike, filed April 14, 2006.

Having reviewed the pertinent filings above and the law applicable to the issues raised, the Court

finds that the motion for summary judgment should be GRANTED, and that the motions to strike

should be DENIED as moot.

I. BACKGROUND

Plaintiff Kent Williams (“Plaintiff”) began to work for Defendant Westway Ford

(“Westway”) as a paint shop helper on November 10, 2003. (Compl. at 1; MSJ at 2.) In December

2003, Body Shop Manager George Herron (“Herron”) transferred Plaintiff to the position of Body

Shop Technician, the position for which Plaintiff had originally applied. (Compl. at 1; MSJ at 2.)

 The Inter-Industry Conference on Auto Repair (“I-CAR”) certification agency has certified

the Westway Body Shop as an I-CAR Gold Class Professional shop. (MSJ Br. at 5.) In order to

retain this certification, Westway Body Shop employees must reach a certain level of certification

 

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within six months of their hire date. On his application, Plaintiff stated that he had attained his ICAR Collision Repair 3000 certification. (Resp. at 125.) 

During Plaintiff’s employment, Westway sought to renew a contract with an insurance

company that required certification of all Body Shop Technicians in welding. (Compl. at 2.)

Westway therefore sent Plaintiff and two other Body Shop Technicians, including Frankie Robinson

(“Robinson”) to take an I-CAR Steel GMA (MIG) Welding Qualification Test in March 2004. (MSJ

Br. at 6.) Neither Robinson nor Plaintiff passed the March test, and both were allowed to retake the

test in April 2004. (MSJ Br. at 7, 10.) Herron made several requests for Plaintiff’s welding test

results, as well as documentation of Plaintiff’s I-CAR Collision Repair 3000 certification. (MSJ Br.

at 6-7.) However, Plaintiff asserts that for various reasons, he was not able to provide the requested

documentation. (Resp. at 112-14.) On June 18, 2004, Herron terminated Plaintiff, citing his lack

of experience, low productivity, and lack of certification. (Compl. at 2; MSJ Br. at 9.) Herron

attempted at that time to find Plaintiff work at two other dealerships doing paint repair work. (MSJ

Br. at 9.)

On December 21, 2004, Plaintiff filed this Title VII action pro se, naming Herron and

Westway as Defendants. Defendants filed the instant motion for summary judgment on January 20,

2006, asserting that Herron is not a proper party to this lawsuit and that Plaintiff failed to exhaust

any harassment claims his complaint may be construed to allege. Further, they assert that Plaintiff

cannot establish a prima facie case of discrimination with respect to his termination, and that he

cannot proffer any evidence of pretext to rebut the legitimate, nondiscriminatory reasons given for

his termination, a lack of experience and certification. On February 8, 2006, Plaintiff filed a 193-

page response consisting of a number of documents, such as a copy of his job application, excerpts

 

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from his deposition testimony, information from the Texas Work Force Commission regarding his

claim for unemployment benefits, and various handwritten items. Defendants filed their reply on

February 24, 2006, and Plaintiff filed a sur-reply on March 21, 2006. The parties also filed a

number of motions to strike different filings related to Defendants’ summary judgment motion.

These matters are now before the Court and ripe for recommendation.

II. SUMMARY JUDGMENT STANDARD

Summary judgment is proper when the pleadings and evidence on file 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). “[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 non-moving party.” Id.

The movant makes a showing that there is no genuine issue of material fact 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 Corp. v. Catrett, 477 U.S. 317, 323 (1986). The pleadings,

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

fact exists. FED. R. CIV. P. 56(c).

Once the movant makes this showing, the non-movant 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 Elec. Indus. Co., Ltd. v. Zenith

Radio Corp., 475 U.S. 574, 586 (1986). Instead, the non-movant must show that the evidence is

sufficient to support a resolution of the factual issue in his favor. Anderson, 477 U.S. at 249.

 

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While all of the evidence must be viewed in a light most favorable to the motion’s opponent,

Anderson, 477 U.S. at 255 (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59 (1970)),

neither conclusory allegations nor unsubstantiated assertions will satisfy the non-movant’s summary

judgment burden. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994) (en banc); Topalian

v. Ehrman, 954 F.2d 1125, 1131 (5th Cir. 1992). 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.

Generally, the pleadings of a plaintiff who is proceeding pro se must be liberally construed

in his favor. See Hurd v. Doe, 2003 WL 21640569, *3 (N.D. Tex. July 10, 2003). However, under

Rule 56 of the Federal Rules of Civil Procedure, the court does not have an obligation to ‘“sift

through the record in search of evidence’ to support the nonmovant’s opposition to the motion for

summary judgment.” Crane v. Bowles, 2004 WL 1057771, at *1 (N.D. Tex. May 6, 2004) (quoting

Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir. 1994)). Instead, “the party opposing summary

judgment is required to identify specific evidence in the record and to articulate the precise manner

in which that evidence supports his claim.” Id. (citing Ragas v. Tenn. Gas Pipeline Co., 136 F.3d

455, 458 (5th Cir. 1998)).

A. Dismissal of Defendant Herron

First, Defendants argue that Plaintiff “was employed solely by Westway Ford, and not

individually by Defendant Herron.” (MSJ Br. at 14.) As a result, they argue, the Title VII claims

against Herron should be dismissed. Id. In his response, Plaintiff appears to assert that Herron was

his employer because he represented Westway and because Westway gave him the power to hire and

 

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fire. (Resp. at 110.) 

“Title VII of the Civil Rights Act of 1964 makes it ‘an unlawful employment practice for an

employer . . . to discriminate against any individual with respect to his compensation, terms,

conditions, or privileges of employment, because of such individual’s . . . [race].’” Indest v.

Freeman Decorating, Inc., 164 F.3d 258, 262 (5th Cir. 1999) (quoting 42 U.S.C. § 2000e-2(a)(1)).

Title VII defines the term employer to include “any agent” of an employer, and the Fifth Circuit has

interpreted the term “any agent” to include an employee’s immediate supervisor, where that

individual exercises an employer’s traditional rights, including hiring and firing. Garcia v. Elf

Atochem N. Am., 28 F.3d 446, 451 (5th Cir. 1994), abrogated on other grounds by Oncale v.

Sundowner Offshore Servs., Inc., 523 U.S. 75, 118 (1998) (citing 42 U.S.C. § 2000e(b); Harvey v.

Blake, 913 F.2d 226, 227 (5th Cir. 1990); Hamilton v. Rodgers, 791 F.2d 439, 442-43 (5th Cir.

1986). However, the Fifth Circuit does not interpret Title VII as imposing individual liability for

Title VII claims. Indest, 164 F.3d at 262 (citing Pfau v. Reed, 125 F.3d 927, 935-36 (5th Cir.

1997)). Rather, the Fifth Circuit has stated that “Congress’s purpose in extending the definition of

an employer to encompass an agent in Section 2000e(b) was simply to incorporate respondeat

superior liability into Title VII.” Indest, 164 F.3d at 262 (citing Grant v. Lone Star Co., 21 F.3d

649, 652 (5th Cir. 1994); Miller v. Maxwell’s Int’l Inc., 991 F.2d 583, 587 (9th Cir. 1993)). “Thus,

a Title VII suit against an employee is actually a suit against the corporation.” Indest, 164 F.3d at

262. Moreover, the Fifth Circuit “has also concluded that ‘outside of an action against an officer

personally, a plaintiff does not have an action against both the corporation and its officer in an

official capacity.’” Indest, 164 F.3d at 262 (citing Sims v. Jefferson Downs Racing Assoc., Inc., 778

F.2d 1068, 1081 (5th Cir. 1985)). For this reason, a plaintiff cannot maintain a Title VII claim

 

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against both a corporation and its agent in his official capacity, as the claim against the employer’s

agent would be redundant. Indest, 164 F.3d at 262 (citing Sims, 778 F.2d at 1081).

As a supervisor with the power to hire and fire Plaintiff, Herron constitutes Westway’s agent

for the purposes of Title VII liability. See Garcia, 28 F.3d at 451; Lea-Stokes v. Hunt County

Mental Health and Mental Retardation Ctr., 2005 WL 1875442, at *2 (N.D. Tex. Aug. 25, 2005)

(Kinkeade, J.). However, Plaintiff may not recover against Herron individually. See Indest, 164

F.3d at 262; Harvey, 913 F.2d 226, 227-28. Plaintiff also cannot maintain a suit against both

Westway as well as against Herron in his official capacity as Westway’s agent. See Indest, 164 F.3d

at 262. Accordingly, Herron is entitled to summary judgment with respect to Plaintiff’s Title VII

claims. Thus the only remaining defendant as to Plaintiff’s Title VII claims is Westway, and the

Court will address the remaining arguments related to those claims as those of Westway.

B. Harassment Claim

Westway asserts that, to the extent that Plaintiff’s complaint can be construed as raising a

claim of harassment, Plaintiff has failed to exhaust his administrative remedies with respect to that

claim. As a result, Westway argues that it is entitled to summary judgment on Plaintiff’s harassment

claim. (MSJ Br. at 14-15.) In his response, Plaintiff does not address Westway’s failure to exhaust

argument.

“Employment discrimination plaintiffs must exhaust administrative remedies before pursuing

claims in federal court.” Taylor v. Books A Million, Inc., 296 F.3d 376, 378-79 (5th Cir. 2002); see

also 42 U.S.C. § 2000e-5(f)(1). “Exhaustion occurs when the plaintiff files a timely charge with the

EEOC and receives a statutory notice of right to sue.” Id. at 379 (citing Dao v. Auchan

Hypermarket, 96 F.3d 787, 788-89 (5th Cir.1996)). The filing requirement serves the purposes of

 

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3

The requirement that an individual file an EEOC charge and otherwise satisfy the Title VII administrative

exhaustion requirement prior to filing suit may be subject to waiver, estoppel, and equitable tolling under limited

circumstances. See Zipes, 455 U.S. at 392 (“[F]iling a timely charge of discrimination with the EEOC is . . . a

requirement . . . subject to waiver, estoppel, and equitable tolling.”). Plaintiff does not argue that waiver, estoppel,

or equitable tolling apply to his failure to include the issue of harassment in his EEOC charge; accordingly, the Court

does not address whether any of these doctrines are applicable to Plaintiff’s situation.

4

To determine whether an investigation of an allegation not mentioned in the EEOC charge could

reasonably be expected to grow out of that charge, some courts have indicated that under certain circumstances, a

court may also look at documentation supporting the EEOC charge, such as an EEOC questionnaire. See Hayes v.

MBNA Tech., Inc., 2004 WL 1283965, at *3-6 (N.D. Tex. June 9, 2004) (discussing different cases in which courts

-8-

providing prompt notice to the employer of the EEOC charge and promoting private conciliation of

the dispute.3

 See Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 398 (1982); Sanchez v. Standard

Brand Foods, 431 F.2d 455, 466-67 (5th Cir. 1970)). 

Here, Defendant acknowledges that Plaintiff filed an EEOC charge based on his termination.

However, Defendant argues that the EEOC charge Plaintiff filed with respect to his termination

contains no allegations of harassment, nor any facts putting Defendant or the EEOC on notice of an

allegation of harassment. (MSJ Br. at 15.) A Title VII action is not strictly limited to the specific

allegations within the plaintiff’s EEOC charge, but also on any discrimination like or related to the

allegations within the EEOC charge and within the scope of the EEOC investigation that would

reasonably be expected to grow out of that charge. Fine v. GAF Chem. Corp., 995 F.2d 576, 578

(5th Cir. 1993) (citing Fellows v. Universal Rests., Inc., 701 F.2d 447, 451 (5th Cir.1983)); see also

Thomas v. Texas Dep’t of Crim. Justice, 220 F.3d 389, 396 (5th Cir. 2000) (“The scope of a Title

VII complaint is limited to the scope of the EEOC investigation which can reasonably be expected

to grow out of the charge of discrimination.”) (citing Young v. City of Houston, 906 F.2d 177, 179

(5th Cir. 1990); Sanchez, 431 F.2d at 466). In determining whether an EEOC investigation of

harassment could reasonably be expected to grow out of Plaintiff’s EEOC charge, the Court must

look to the factual statement contained therein.4 See Sanchez, 431 F.2d at 462 (“the crucial element

 

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in the Northern District of Texas did or did not examine the plaintiff’s EEOC affidavit and/or questionnaire, and

holding that “when determining whether a claim has been exhausted, the decision is to be based on the four corners

of the EEOC charge, but the court may also consult related documents, such as a plaintiff's affidavit, her response to

the EEOC questionnaire, and attachments to the response, when (1) the facts set out in the document are a reasonable

consequence of a claim set forth in the EEOC charge, and (2) the employer had actual knowledge of the contents of

the document during the course of the EEOC investigation.”); Johnson v. MBNA Hallmark Info. Servs., 2003 WL

21418670, at *2 (N.D. Tex. June 16, 2003) (comparing cases in which courts did and did not find that EEOC

questionnaire could be considered as part of the charge). However, neither party provided any supporting

documentation, and the Court thus need not consider whether the circumstances of this case would permit the

examination of such documentation in determining whether an investigation of harassment could reasonably be

expected to grow out of Plaintiff’s EEOC charge.

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of a charge of discrimination is the factual statement contained [in the EEOC charge].”). 

The Court thus turns to the factual statements within Plaintiff’s EEOC charge to determine

whether an investigation of harassment could reasonably be expected to grow out of that charge.

In Plaintiff’s EEOC charge, he states that the personal harm he suffered was that “[o]n or about June

18, 2004, I was terminated from my position of Body Shop Technician.” (MSJ App. Exh. 2. at 12.)

In that same charge, Plaintiff provides the following Discrimination Statement: 

I believe that I have been discriminated against because of my race, Black[,] in

violation of the Title VII of the Civil Rights Act of 1964, as amended, in that a White

male similarly situated co-worker does not have his Welders Certification License

but was not terminated.

Id. In addition, the charge form directs individuals to fill out the earliest and latest dates that the

alleged discrimination took place. Id. In that section, Plaintiff indicated that the discrimination he

alleges took place at the earliest and latest on June 18, 2004. Id. These statements relate exclusively

to Plaintiff’s allegation that he was terminated based on his race. As a result, the Court finds that

an investigation into harassment allegations could not reasonably be expected to grow out of

Plaintiff’s EEOC charge. See, e.g., Daniel v. Dallas County Hosp. Dist., 2006 WL 247898, at *5

(N.D. Tex. Feb. 1, 2006) (concluding that while plaintiff’s EEOC charge alleged sex discrimination

based on termination and failure to receive a promotion, her sexual harassment claim was barred

 

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5

Westway also argues that Plaintiff’s harassment allegations “do not rise to the level of actionable

harassment based on race.” (MSJ Br. at 16.) The Court need not address that argument, because the Court finds that

Westway is entitled to summary judgment on Plaintiff’s harassment claim due to his failure to exhaust his

administrative remedies.

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because the charge made no specific mention of such a claim) (citing Vincent v. Coates, 2004 WL

1787838, at *2 (N.D. Tex. July 2, 2004); Sabrah v. Lucent Tech., Inc., 1998 WL 792503, at *2 n.

3 (N.D. Tex. Nov. 6, 1998); Thomas, 220 F.3d at 395); Johnson v. MBNA Hallmark Info. Servs.,

2003 WL 21418670, at *2 (N.D. Tex. June 16, 2003) (finding that plaintiff’s EEOC charge alleging

only a failure to promote claim based on race and gender did not put EEOC or defendant on notice

of claim for a racially hostile work environment or harassment); Garrett v. Celanese Corp., 2003

WL 22234917, at *2 (N.D. Tex. Apr. 28, 2003) (finding that where plaintiff’s EEOC charge alleged

only receipt of a poor evaluation and placement on a performance improvement plan because of her

race, nothing in charge put the employer or the EEOC on notice of a hostile work environment

claim). Plaintiff has therefore failed to establish that a genuine issue of material fact exists with

respect to Westway’s assertion that he failed to exhaust his administrative remedies as to his

harassment claim, and Westway is entitled to summary judgment on this claim.5

 See Crawford v.

Harris County Juvenile Prob. Dept., 31 Fed. Appx. 159 (5th Cir. 2001) (finding that district court

properly granted summary judgment where there was no genuine issue of material fact as to whether

the allegations in the plaintiff’s EEOC charge reasonably related to an ADA claim where the EEOC

charge referred only to race discrimination).

C. Termination Claim

Next, Westway contends that summary judgment is appropriate with respect to Plaintiff’s

claim that he was terminated because of his race in violation of Title VII, because Plaintiff can

neither establish a prima facie case of discrimination nor proffer any evidence of pretext. (MSJ at

 

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6-7.) 

1. Title VII Framework

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). Title VII also provides

that “an unlawful employment practice is established when the complaining party demonstrates that

race, color, religion, sex, or national origin was a motivating factor for any employment practice,

even though other factors also motivated the practice.” 42 U.S.C. § 2000e-2(m).

A plaintiff may establish a Title VII claim by presenting either direct or circumstantial

evidence. Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893, 896 (5th Cir. 2002) (citing Russell v.

McKinney Hospital Venture, 235 F.3d 219, 222 (5th Cir.2000)). “Direct evidence is evidence that,

if believed, proves the fact of discriminatory animus without inference or presumption.” Sandstad,

309 F.3d at 897 (citing Mooney v. Aramco Services Co., 54 F.3d 1207, 1217 (5th Cir.1995)). In the

instant action, Plaintiff has not presented direct evidence of race discrimination. Thus, in order to

establish his claim, he must create an inference of discrimination under the burden-shifting

framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), as modified by

Rachid v. Jack in the Box, Inc., 376 F.3d 305 (5th Cir. 2004). See Earle v. Aramark Corp., 2006 WL

832507, at *2 (N.D. Tex. March 29, 2006) (citing Rachid, 376 F.3d at 312)).

As modified, the McDonnell Douglas framework consists of three stages. First, “the plaintiff

must still demonstrate a prima facie case of discrimination[.]” Rachid, 376 F.3d at 312. “[T]he

defendant then must articulate a legitimate, non-discriminatory reason for its decision to terminate

the plaintiff.[.]” Id. At the third stage, as modified by Rachid in light of the Supreme Court’s

decision in Desert Palace v. Costa, 539 U.S. 90, (2003), a plaintiff may proceed under one of two

 

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6

In Desert Palace v. Costa, the Supreme Court held that a Title VII plaintiff did not need to present direct

evidence of discrimination in order to receive a mixed-motive jury instruction under 42 U.S.C. § 2000e-2(m). 539

U.S. at 101-102. In Rachid, the Fifth Circuit applied that analysis to an Age Discrimination in Employment Act

claim in the context of a summary judgment motion. 376 F.3d 305.

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alternatives: the pretext alternative or the mixed-motives alternative.6

 Id. (citing Rishel v.

Nationwide Mut. Ins. Co., 297 F. Supp. 2d 854, 865 (M.D.N.C. 2003) (noting that accommodating

Desert Palace only requires modification of the final stage of the McDonnell Douglas scheme)

(other citations omitted). Under the pretext alternative, the plaintiff must “offer sufficient evidence

to create a material issue of fact. . .that the defendant’s reason is not true, but is instead a pretext for

discrimination[.]” Rachid, 376 F.3d at 312. Under the mixed-motives alternative, plaintiff must

“offer sufficient evidence to create a material issue of fact. . .that the defendant’s reason, while true,

is only one of the reasons for its conduct, and another ‘motivating factor’ is the plaintiff's protected

characteristic[.]” Id. “If the employee proves that discrimination was a motivating factor in the

employment decision, the burden again shifts to the employer, this time to prove it would have taken

the same action despite the discriminatory animus.” Richardson v. Monitronics Intern., Inc., 434

F.3d 327, 333 (5th Cir. 2005) (citing Rachid, 376 F.3d at 312.)

2. Prima Facie Case 

Applying the modified McDonnell Douglas framework to Plaintiff’s termination claim, he

must make a prima facie showing “‘that []he (1) is a member of a protected class; (2) was qualified

for [his] 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 others

similarly situated were treated more favorably.’” Okoye v. Univ. of Tex. Houston Health Sci. Ctr.,

245 F.3d 507, 513 (5th Cir. 2001) (quoting Shackleford v. Deloitte & Touche, LLP, 190 F.3d 398,

404 (5th Cir. 1999)) (other citations omitted). Defendant concedes that Plaintiff is a member of a

 

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7

Herron explains in his affidavit that “‘[f]lag hours’ are hours that track the insurance companies’

requirements for specific tasks. For example, if an insurance company’s guidelines provide that the bumper on a car

should be repaired in three hours, but the proficiency of the Body Shop Technician allows the Technician to

complete the task in one hour, the Technician receives credit for three hours of work.” Id. at ¶ 13. 

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protected class and was subject to an adverse employment action. (MSJ Br. at 19.) In addition,

Defendant concedes that a plaintiff in a Title VII civil rights action need only show that he has the

minimum qualifications for a position. Thus Westway assumes, for the purpose of its motion, that

Plaintiff may have been qualified for the position of Body Shop Technician. Id. (citing Rubinstein

v. Adm’rs. of the Tulane Educ. Fund, 58 F. Supp. 2d 702, 711-12 (E.D. La. 1998), aff’d in relevant

part, 218 F.3d 392 (5th Cir. 2000); Steele v. SGS-Thomson Microelectronics, 962 F. Supp. 972, 976

(N.D. Tex. 1997)). 

While Westway does not dispute Plaintiff’s ability to satisfy the first three prongs of the

prima facie case, Westway argues that because Plaintiff cannot show that he was treated differently

than similarly-situated employees, he cannot satisfy the fourth prong. Westway presents evidence

showing that the individual Plaintiff has alleged as being similarly situated, Robinson, was in fact

not similarly situated, because Robinson was taking the welding test to become recertified in

welding. (MSJ App. Exh. 4 at ¶ 35.) In addition, during the period Plaintiff was employed,

Robinson’s flag hours7 averaged 65.81 hours per week, while Plaintiff’s averaged 51.80 hours per

week. (MSJ App. Exh. 1 at 9.) Westway also argues that even if Robinson and Plaintiff were

similarly situated, they were both treated equally, as both received two opportunities to take the

welding test. (MSJ App. Exh. 4 at ¶ 36-37.) In his response, Plaintiff does not address these

arguments. He also fails to present evidence rebutting that presented by Westway. Plaintiff

therefore has failed to show the existence of a genuine material issue of fact concerning whether a

similarly-situated individual was treated more favorably. See Anderson, 477 U.S. at 249.

 

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In stating the elements of a prima facie case for race discrimination, Westway cites Abarca v. Metropolitan

Transit Authority, 404 F.3d 938, 941 (5th Cir. 2005). In Abarca, the plaintiff’s primary issue was not his

termination, but the defendant’s requirement that he sign a reinstatement agreement in order to be allowed to return

to work. Id. Thus, whether the plaintiff was replaced by someone outside the protected class was not relevant to his

claim. Okoye, on the other hand, states the proper elements of a prima facie case for race discrimination with respect

to a termination claim. 245 F.3d. at 513.

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However, Plaintiff may also establish a prima facie case of discrimination with respect to his

termination by demonstrating that an individual outside the protected class was hired to replace him.

Westway did not address this aspect of the prima facie case, which is the usual manner of showing

discrimination in connection with a termination claim.8

 See Okoye, 245 F.3d at 513 (stating that the

fourth prong of a prima facie discrimination claim for termination requires a showing that a plaintiff

was replaced by someone outside the protected class or, that others similarly situated were treated

more favorably) (emphasis added). Plaintiff appears to allege that he was replaced by an individual

outside the protected class, based on his allegation that he was fired so that Herron could hire a

friend of his. (Compl. at 3.) Though Plaintiff does not explicitly allege that Herron’s friend was not

African-American, he does allege that he was told by fellow Body Shop Technicians that Plaintiff

was the only African-American to work in that position in thirteen years. (Mag. Quest. Resp. to

Quest. 1.) Other than these allegations, Plaintiff offers no other support showing that an individual

outside the protected class was hired to replace him. Thus, Plaintiff has failed to show a genuine

issue of material fact concerning the existence of a prima facie case of discrimination. Anderson,

477 U.S. at 256-57; see also Greenberg v. Crossroads Systems, Inc., 364 F.3d 657, 670 (5th Cir.

2004) (unsubstantiated allegations do not constitute competent summary judgment proof) (citing

Abbott v. Equity Group, Inc., 2 F.3d 613, 619 (5th Cir.1993). However, even if the Court assumes,

based on Plaintiff’s allegations and for the purpose of making findings on this motion, that Plaintiff

has made a satisfactory showing of a prima facie case, his claim nevertheless fails on the issue of

 

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pretext, as discussed below.

3. Legitimate, Non-Discriminatory Reason for Termination

Having assumed, arguendo, that Plaintiff has made a prima facie showing, the Court now

examines whether Westway has met its burden to produce evidence of a legitimate,

nondiscriminatory reason for terminating Plaintiff. See Rachid, 376 F.3d at 312. Westway asserts

that Plaintiff was fired because he “did not have the requisite level of experience or documented

certifications to do the type of body work that was required for a Body Shop Technician.” (MSJ Br.

at 21.) In support, Westway points to Herron’s affidavit, in which he states that he had observed that

Plaintiff did not have the experience necessary to complete “complicated structural repairs involving

severe structural damage to automobiles.” (MSJ App. Exh 4 at ¶ 25.) Herron also states in his

affidavit that on at least one occasion, he had to assign a different Body Shop Technician to

complete repairs on a car with severe damage that Plaintiff was not able to fix. Id. at ¶ 26. Further,

Herron states that he was unable to assign “repair jobs to [Plaintiff] that required measurements or

frame structure repair because he was not able to perform such tasks. . . [and] never produced

documentation that he was certified or qualified to produce such repairs.” Id. at ¶ 29. Moreover,

Herron asserts that from December 2003 to June 2004, Plaintiff’s “flag hours were on average 14

hours lower than his nearest Body Shop Technician colleague and nearly 25 hours below the average

for all of the Body Shop Technicians.” Id. at ¶ 15-16. With the above-cited evidence, Westway has

met its burden of production to provide a legitimate, nondiscriminatory reason for terminating

Plaintiff. Because Westway has met its burden, Plaintiff must now offer sufficient evidence creating

a genuine issue of material fact that Westway’s nondiscriminatory reason for terminating him was

merely a pretext for discrimination, or that discrimination was a motivating factor in Westway’s

 

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decision to terminate him. See Rachid, 376 F.3d at 312.

4. Pretext

 To show pretext, Plaintiff must “demonstrate that the proffered reason was not the true

reason for the employment decision.” Plaintiff succeed may do so “either directly by persuading

the court that a discriminatory reason more likely motivated the employer or indirectly by showing

that the employer's proffered explanation is unworthy of credence.” Tex. Dept. Community Affaris

v. Burdine, 450 U.S. 248, 255 (1981); see also Wallace v. Methodist Hosp. System, 271 F.3d 212,

220 (5th Cir. 2001)(citation omitted). “The evidence offered to counter the employer’s proffered

reasons must be substantial.” Wallace, 271 F.3d at 220 (citing Auguster v. Vermilion Parish Sch.

Bd., 249 F.3d 400, 402 (5th Cir.2001). In addition, “[t]he plaintiff must put forward evidence

rebutting each of the nondiscriminatory reasons the employer articulates.” Wallace, 271 F.3d at 220

(citing Rubinstein v. Adm’rs of the Tulane Educ. Fund, 218 F.3d 392, 400-01 (5th Cir. 2000);

Rutherford v. Harris County, Tex., 197 F.3d 173, 184 (5th Cir. 1999); Clay v. Holy Cross Hosp., 253

F.3d 1000, 1007 (7th Cir. 2001)) . 

Plaintiff does not directly respond to Westway’s assertions regarding its stated reasons for

terminating him, but does devote much of his response to detailing his efforts to obtain

documentation from I-CAR, including his Collision Course 3000 certification and his welding test

results. (See, e.g., Resp. at 1-10; 39-41; 44-50; 57-69; 145-49.) However, Plaintiff’s focus on the

collision course certification appears to be misplaced. To the extent that Herron cited Plaintiff’s

certification as a reason for terminating him, it was Plaintiff’s failure to produce documentation of

his certification either in the Collision Course 3000 or in welding that Herron focused on. (MSJ

App. Ex. 4 at ¶¶ 17, 23.) While Plaintiff’s submissions indicate that he ultimately obtained the

 

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9

The copy Plaintiff provides of his I-CAR Collision Course 3000 certificate is dated July 6, 2004, after

Plaintiff’s termination. (Resp. at 13.) Plaintiff argues that the listing of Westway’s name above his home address on

the paper with which the certificate was mailed evidences Westway’s payment for the certification, and hence

Herron’s knowledge of that certificate. (Resp. at 12; 81-84.) He asserts that the appearance of Westway’s name is

also evidence that Herron worked in concert with I-CAR. (Resp. at 81-84; 149; 152-53.) Neither the posttermination dated certificate itself nor Plaintiff’s conclusory assertions regarding an alleged conspiracy between

Herron and I-CAR demonstrate that any of Herron’s stated concerns about Plaintiff’s certification were pretextual. 

Moreover, Plaintiff provides no evidence demonstrating that a faxed copy of his I-CAR transcript, dated April 16,

2004 and reflecting passage of the Collision Course 3000, was actually received by Westway or viewed by Herron. 

(Resp. at 112)

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Collision Course 3000 certification, he produces no competent summary judgment that prior to his

termination, he had in fact had demonstrated evidence of his certification in the Collision Course

3000 to Herron.9 Thus, even if Plaintiff had any of his required certification prior to his termination,

his failure to show Herron that documentation supports a finding that to the extent Herron cited

Plaintiff’s lack of certification as a reason for terminating him, such a reason was not pretextual.

See Steele, 962 F. Supp. at 978 (“An employer may make an erroneous employment decision, so

long as that decision is not made with a discriminatory motive.”) (citing Waggoner v. City of

Garland, 987 F.2d 1160, 1165 (5th Cir.1993); Mayberry v. Vought Aircraft Co., 55 F.3d 1086, 1091

(5th Cir. 1995)). Moreover, Plaintiff provides no evidence that he actually obtained his certification

in welding. In fact, the copy he provides of the results of the second welding test indicate that he

passed only five of six parts of the test. (Resp. at 15; 64.) In sum, then, Plaintiff’s extensive

discussion of issues related to his certification fails to demonstrate that Westway’s stated reasons

for his termination are pretextual. 

Next, Plaintiff appears to assert that Westway’s stated reasons are pretextual because

Robinson was not removed for failing part of his welding test. (Resp. at 109; 162.) To establish

pretext by showing disparate treatment, a plaintiff must show that the employer gave preferential

treatment to an employee outside the protected class under “nearly identical” circumstances. Little

 

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10That evidence included a showing that Robinson took the welding test to become recertified in welding

and had higher average flag hours. (MSJ App. Exh. 1 at 9; Exh. 4 at ¶ 35.) 

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v. Republic Refining Co., 924 F.2d 93, 97 (5th Cir. 1991) (quoting Smith v. Wal-Mart Stores, 891

F.2d 1177, 1180 (5th Cir. 1990); citing Davin v. Delta Airlines, 678 F.2d 567, 570-71 (5th Cir. Unit

B 1982)). As discussed above in evaluating whether Plaintiff established a prima facie case of

discrimination, the Court found Plaintiff has failed to rebut the evidence proffered by Westway

showing that he and Robinson were not similarly situated.10 Plaintiff therefore cannot establish that

Robinson received preferential treatment under “nearly identical” circumstances. See Okoye, 245

F.3d at 515 (finding that plaintiff could not demonstrate disparate treatment by citing to employees

who allegedly committed acts of misconduct where she had not produced evidence that those

employees were similarly situated to her). 

In sum, Plaintiff has offered no evidence to rebut Westway’s stated reasons for terminating

him. While Plaintiff devotes a considerable portion of his response to addressing issues related to

his certification, he has not provided any evidence rebutting that proffered by Westway with respect

to his low productivity and lack of experience. Thus, he has failed to meet his burden to show

pretext. See Wallace, 271 F.3d at 220. Where the plaintiff has offered no evidence to rebut the

employer’s facially benign explanations, no inference of discrimination can be drawn. See EEOC

v. La. Office of Cmty. Servs., 47 F.3d 1438, 1447-1448 (5th Cir. 1995) (explaining that a plaintiff

must tender factual evidence from which a fact-finder could reasonably conclude that the

defendant’s reasons were pretext for discrimination). Consequently, Plaintiff has failed to show a

genuine issue of material fact regarding pretext.

 

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11The Court notes that a number of other courts, both within and outside the Northern District of Texas,

apply the modified McDonnell Douglas framework only where the plaintiff concedes that discrimination was not the

sole reason for his discharge, and instead argues that discrimination was only a motivating factor, or where the

plaintiff does not rely on the mixed-motive analysis. See Hughes v. Texas Keg Steakhouse & Bar, Inc., 2006 WL

708158 (N.D. Tex. Mar. 21, 2006) (citing Richardson, 434 F.3d at 332-33 (5th Cir. 2005); Pool v. U.S. Investigation

Servs., 2005 U.S. Dist. LEXIS 31928, at *5 n. 1 (N.D. Tex. Dec. 6, 2005) (declining to engage in mixed-motive

analysis because the plaintiff did not rely on that theory); Walker v. Norris Cylinder Co., 2005 U.S. Dist. LEXIS

20465, at *11 n. 5 (N.D. Tex. Sept. 9, 2005) (same); Bywaters v. S. Methodist Univ., 2006 U.S. Dist. LEXIS 4314, at

*6-7 (N.D. Tex. Feb. 3, 2006) (same)). See also Wynn v. J.C. Penney Co., Inc., 2006 WL 722125, at *3 (E.D. Tex.

Mar. 14, 2006) (stating that the mixed-motive analysis adopted by the Fifth Circuit in Rachid applies where the

plaintiff concedes that discrimination was not the sole reason for the discharge, but that discrimination was a

motivating factor). In this action, Plaintiff does not rely on a mixed-motive theory. And while he acknowledges that

Westway gave reasons other than discrimination for terminating him, it is not clear whether he has conceded that

Westway had any reason for discharging him other than alleged discrimination. Thus, it is not clear whether the

Court must apply the mixed-motive analysis to Plaintiff’s termination claim, but does so in an abundance of caution.

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5. Mixed-Motive11

Plaintiff can also survive summary judgment by offering sufficient evidence to create a

material issue of fact that Westway’s stated reasons for terminating him, while true, are only some

of the reasons for its conduct, and that another “motivating factor” is Plaintiff’s race. See Rachid,

376 F.3d at 312. Broadly construing Plaintiff’s filings, he appears to allege that Herron’s racial bias

is evidenced by his having allegedly called Plaintiff a gang-banger and turned off his jazz music.

(Mag. Quest. at 2-3.) Plaintiff offers no evidence, such as an affidavit, to support these allegations.

As stated above, unsubstantiated allegations do not constitute competent summary judgment proof.

Greenberg, 364 F.3d at 670. Plaintiff’s subjective belief of Herron’s discriminatory intent is

insufficient to rebut Westway’s legitimate, nondiscriminatory reason for its actions. See Earle v.

Aramark Corp.,2006 WL 83250, at *5 (N.D. Tex. Mar. 29, 2006) (finding that where plaintiff

provided no evidence of defendant’s discriminatory intent, other than conclusory statements and

subjective belief, she failed to rebut defendant’s legitimate, nondiscriminatory reason for its actions)

(citing Vance v. Union Planters Corp., 209 F.3d 438, 444 (5th Cir. 2000)). Plaintiff has therefore

failed to show that a genuine issue of material fact exists as to whether race was a motivating factor

 

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12Plaintiff’s response to Defendants’ motion for summary judgment contains a section labeled

“defamation” that includes a two page discussion of what defamation entails, bare assertions regarding Herron’s

provision of references for Plaintiff, and part of an unidentified typed document with the word “defamation” written

at the top. (Resp. at 130-33.)

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in Westway’s decision to terminate him. Accordingly, Westway is entitled to summary judgment

on Plaintiff’s termination claim.

D. Age Discrimination in Employment Act and Defamation Claims

In his response to Defendants’ motion for summary judgment, Plaintiff appears to raise a

defamation claim as well as an Age Discrimination in Employment Act (“ADEA”) claim. (Resp.

at 99; 130-33.) Defendants point out in their reply that Plaintiff raised his ADEA claim for the first

time in his summary judgment response. (MSJ Reply at 1-2.) Because Plaintiff failed to raise this

claims in his complaint or in his responses to the Magistrate’s Questionnaire, the claim is not

properly before the Court. See 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.1990)) (“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.”) 

With respect to Plaintiff’s defamation claim, Defendants also assert in their reply that

Plaintiff raised this claim for the first time in his summary judgment response.12 (MSJ Reply at 2-3.)

Alternatively, Defendants argue that even if the Court considered Plaintiff’s defamation claim, it

fails because he has not offered proper summary judgment evidence in support. Id. at 3. One of

Plaintiff’s responses to a question in the Magistrate’s Questionnaire, regarding what relief he seeks

by this action, could be construed as raising a defamation claim. Plaintiff alleged therein that Herron

had “destroyed” Plaintiff’s career “by calling other shops that are close by my house and lying to

 

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them about me being a painter and not a body technician, and not knowing what I was doing[.]”

(Mag. Quest. at 5.) Thus, the Court will address the merits of Plaintiff’s defamation claim.

“To prevail on a defamation claim, a private citizen plaintiff must establish (1) that the

defendant published a false statement; (2) the false statement was defamatory (i.e. it damaged the

plaintiff's reputation, exposing him to ‘public hatred, contempt, ridicule, or financial injury’); and

(3) the defendant made the statement with negligence as to its truth.” Fowler v. Capital Cities/ABC,

Inc., 2002 WL 31230802, at *3 (N.D. Tex. 2002) (citing TEX. CIV. PRAC. & REM. CODE ANN. §

73.001 (Vernon 1997) (defining defamation); Green v. CBS, Inc., 286 F.3d 281, 283 (5th Cir. 2002);

Joseph v. Solutia, Inc., 193 F. Supp. 2d 989, 993 (S.D. Tex. 2002). “Defamation claims must

specifically state the time and place of the publication.” Jackson v. Dallas Indep. Sch. Dist., 1998

WL 386158, *5 (N.D. Tex.), aff'd, 232 F.3d 210 (5th Cir. 2000) (citing 5 CHARLES A. WRIGHT &

ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1309, at 698 (2d ed. 1990)). 

Here, Plaintiff’s allegations appear to relate to references Herron provided for Plaintiff at the

time he was fired. Herron states in his affidavit that during the meeting at which he terminated

Plaintiff, Herron called individuals at two other dealerships to see if they had openings in their paint

repair departments of their body shops for Plaintiff, and provided a good reference to those

individuals. (MSJ App. at ¶ 32-33.) Plaintiff provides no competent summary judgment evidence

refuting Herron’s averments. Rather, based on his response to the Magistrate’s Questionnaire, he

appears to urge the Court to interpret Herron’s positive references with respect to Plaintiff’s ability

to work in a paint repair department as negative references with respect to Plaintiff’s ability to work

in a body repair department. The Court cannot draw such an inference based solely on Plaintiff’s

conclusory allegations. 

 

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In his response, Plaintiff points to a separate basis for his defamation claim. He includes an

unidentified typed document with the word “defamation” written at the top. (Resp. at 133.) The

document appears to be an excerpt of Westway’s position statement in response to Plaintiff’s EEOC

charge. (See Resp. at 122-124.) The page of the statement Plaintiff appears to allege is defamatory

states that “[i]t was this lack of productivity [low flag hours], and the fact that [Plaintiff] was not

skilled at complicated repairs that led to his discharge. . .” (Resp. at 133.) The statement also

provides that “it was [Plaintiff’s] inability to make more complicated repairs in a timely manner,

such as those involving structural damage[,] that le[]d to Mr. Herron’s decision.” Id. 

A statement must be false in order to be considered defamatory. See, e.g., Green, 286 F.3d

at 283. Plaintiff presents no competent summary judgment evidence demonstrating that he did not

have low flag hours or that he was skilled at making complicated repairs. Moreover, Westway

presents evidence that Plaintiff was terminated from a subsequent position he held in a body shop,

at Service King, because he was “the lowest producing technician in hours” and because “quality

and hours produced are lacking.” (MSJ App. Exh. 3 at 14.) The Court thus finds that because

Plaintiff has not shown that the statements he finds objectionable are false, he has failed to establish

a defamation claim with respect to the contents of Westway’s EEOC position statement.

Other than the references Herron provided during the termination meeting and the copy of

Westway’s EEOC position statement, Plaintiff has not pointed to any other allegedly defamatory

statements made by Herron. Plaintiff has also failed to allege the identity of the third parties to

whom any other allegedly defamatory statements were made, or the time or place of such statements.

Thus, with respect to any other allegedly defamatory statements not specified, Plaintiff fails to meet

the necessary elements for maintaining a defamation claim. See Fields v. Keith, 174 F. Supp. 2d

 

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13The Court thus need not reach Defendants’ alternate argument that summary judgment is appropriate

based on Tex. Labor Code § 103.003(a).

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464, 473 (N.D. Tex. 2001), aff'd, 273 F.3d 1099 (5th Cir. 2001); Jackson, 1998 WL 386158 at *5.

Accordingly, to the extent that Plaintiff’s response to the Magistrate’s Questionnaire could be

construed as raising a defamation claim, Defendants are entitled to summary judgment with respect

to that claim.13

E. Motions to Strike

Defendants filed a motion to strike Plaintiff’s response to their summary judgment motion.

Among other objections, they argue that Plaintiff’s response and the documents on which he relies

constitute improper summary judgment evidence. To the extent that the Court has considered any

of the documents Defendants object to, the Court has found that Plaintiff has nevertheless failed to

create a material issue of fact as to any of his claims. The court therefore denies Defendants’ motion

to strike Plaintiff’s response to their summary judgment motion as moot. For this reason,

Defendants’ and Plaintiff’s motions to strike related filings are also properly denied as moot.

Additionally, Defendants move to strike Plaintiff’s sur-reply. To the extent the Court has considered

Plaintiff’s surreply, the Court has found that therein, Plaintiff failed to create a material issue of fact

as to any of his claims. That motion to strike is therefore also denied as moot.

III. CONCLUSION

For these reasons, the Court RECOMMENDS that Defendants Westway Ford and George

Herron’s motion for summary judgment should be GRANTED. In addition, the parties’ motions

to strike are DENIED as moot. 

 

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SO RECOMMENDED on this 21st day of April, 2006.

 ___________________________________

 IRMA CARRILLO RAMIREZ

 UNITED STATES MAGISTRATE JUDGE

INSTRUCTIONS FOR SERVICE AND

NOTICE OF RIGHT TO APPEAL/OBJECT

Pursuant to Title 28, United States Code, Section 636(b)(1), any party who desires to object

to these findings, conclusions and recommendation must file and serve written objections within ten

(10) days after being served with a copy. A party filing objections must specifically identify those

findings, conclusions or recommendation to which objections are being made. The District Court

need not consider frivolous, conclusory or general objections. A party’s failure to file such written

objections to these proposed findings, conclusions and recommendation shall bar that party from a

de novo determination by the District Court. See Thomas v. Arn, 474 U.S. 140, 150 (1985); Perales

v. Casillas, 950 F.2d 1066, 1070 (5th Cir. 1992). Additionally, any failure to file written objections

to the proposed findings, conclusions and recommendation within ten (10) days after being served

with a copy shall bar the aggrieved party from appealing the factual findings and legal conclusions

of the Magistrate Judge that are accepted by the District Court, except upon grounds of plain error.

Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428–29 (5th Cir. 1996) (en banc).

 ___________________________________

 IRMA CARRILLO RAMIREZ

 UNITED STATES MAGISTRATE JUDGE

 

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