1

Inca Metals points out that the proper corporate name of the

entity that employed plaintiffs is “KIC Holdings, Inc. d/b/a

Kingway Inca Clymer Material Handling.” Ds. Br. 1 n.1. As have

defendants, the court will assume in deciding this motion that

defendant Inca Metals has been properly named.

 IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

HENRY KIRKWOOD, et al., §

 §

Plaintiffs, §

 § Civil Action No. 3:04-CV-0226-D

VS. §

 §

INCA METAL PRODUCTS §

CORPORATION, et al., §

 §

Defendants. §

MEMORANDUM OPINION

 AND ORDER 

In this action alleging claims for discrimination and

retaliation and a pendent state-law claim for intentional

infliction of emotional distress, plaintiffs Henry Kirkwood

(“Kirkwood”) and Jessie Cole (“Cole”) move the court to reconsider

its decision denying their motion for enlargement for discovery,

and they also move to extend and to compel discovery, or,

alternatively, to strike defendants’ motion for partial summary

judgment. Defendants Inca Metals Products Corporation, its

division Dallas Tube and Rollform (“Inca Metals”),1

 and Roger

Shepherd (“Shepherd”) move for partial summary judgment. For the

reasons that follow, the court denies plaintiffs’ motions and

grants in part and denies in part defendants’ motion.
2

As the court noted in King v. Enterprise Leasing Co. of DFW,

2007 WL 2005541 (N.D. Tex. July 11, 2007) (Fitzwater, J.):

“‘Chapter 21 was entitled the Texas Commission on Human Rights Act

until the abolishment of the Commission on Human Rights. In 2004,

the ‘powers and duties’ of the Commission on Human Rights were

transferred to the Texas Workforce Commission Civil Rights

Division.’” Id. at *1 n.1 (quoting Tex. Dep’t of Criminal Justice

v. Guard, 2007 WL 1119572, at *2 n.3 (Tex. App. 2007, no pet. h.)

(not designated for publication)). As in King, the court for

clarity will refer to this claim as brought under the TCHRA.

3The court denies as moot the first ground of defendant’s

summary judgment motion, in which they contend that Title VII,

TCHRA, and ADEA claims cannot be brought against Shepherd.

Plaintiffs do not assert claims against Shepherd under these

statutes. The first amended complaint only asserts § 1981 and

intentional infliction of emotional distress claims against

Shepherd. 

- 2 -

I

Kirkwood and Cole bring claims for race discrimination and

retaliation, in violation of 42 U.S.C. § 1981, Title VII of the

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

and the Texas Commission on Human Rights Act (“TCHRA”),2 and under

Texas law for intentional infliction of emotional distress.

Kirkwood also alleges a claim for age discrimination, in violation

of the Age Discrimination in Employment Act of 1967 (“ADEA”), 29

U.S.C. § 621 et seq. The claims against Shepherd are limited to

those based on § 1981 and for intentional infliction of emotional

distress.3

Kirkwood and Cole filed the lawsuit on February 4, 2004. By

a July 6, 2006 scheduling order, the court set July 1, 2007 as the

deadline for the parties to complete discovery. Under Fed. R. Civ.
4The motion is one for partial summary judgment because

defendants do not seek summary judgment on plaintiffs’ racially

hostile work environment claims. 

- 3 -

P. 6(a), to which the order explicitly referred, the deadline was

extended to July 2, 2007, because July 1 was a Sunday. On July 2

plaintiffs filed a motion to enlarge time, requesting a 60-day

extension of the discovery period. In Kirkwood v. Inca Metal

Products Corp., 2007 WL 2325222 (N.D. Tex. Aug. 13, 2007)

(Fitzwater, J.) (“Kirkwood I”), the court concluded that plaintiffs

had failed to demonstrate good cause under Rule 16(b) for modifying

the July 6, 2006 scheduling order, and it denied plaintiffs’ motion

to enlarge time. Id. at *3.

 Defendants move for partial summary judgment.4 Plaintiffs

move the court to reconsider its decision in Kirkwood I, and they

also move to extend and to compel discovery or, alternatively, to

strike defendants’ motion for partial summary judgment.

II

The court turns initially to plaintiffs’ motion for

reconsideration.

A

Plaintiffs maintain that they were unable to complete

discovery by the court-ordered deadline because defendants did not

allow them to depose certain witnesses. They contend that they

entered into an agreement with defendants to extend the time for

both sides to conduct depositions, and that under this agreement,
- 4 -

defendants conducted depositions on July 12, 2007, ten days after

the discovery deadline. Plaintiffs’ counsel avers that during the

prior months, he repeatedly and in good faith attempted to “reach

an accommodation with Defendants regarding depositions” through “a

course of correspondence, emails and telephonic conferences.” Ps.

Mot. 6. Plaintiffs contend that although they allowed defendants

to conduct depositions after the deadline, defendants refused to

honor the agreement and denied plaintiffs’ deposition requests.

Plaintiffs maintain that on July 17, 2007 they attempted to serve

notices of deposition on Jim Hutchins (“Hutchins”) and Shepherd,

but they “became evasive and refused to accept service.” Id. at 5.

Plaintiffs argue that this evasion of service should be treated as

a Rule 37(a)(3) violation, and that the court should therefore

require defendants to comply with plaintiffs’ deposition requests.

Defendants deny having entered into an agreement with

plaintiffs to take depositions after the discovery deadline. They

maintain that the depositions that they took after the deadline

were requested well in advance, but that plaintiffs did not request

to take their depositions until July 2, 2007. Defendants deny that

efforts were made to evade service of deposition notices, and they

contend that plaintiffs’ sole attempt to conduct discovery during

the allotted time period was through a telephone call, made on the

last day of discovery, in which their counsel requested the

depositions. 
5Under the restyled Federal Rules of Civil Procedure that took

effect December 1, 2007, the good cause standard is now found in

Rule 16(b)(4), which states that “[a] schedule may be modified only

for good cause and with the judge’s consent.”

- 5 -

B

Plaintiffs essentially seek through their various motions to

modify the scheduling order entered July 1, 2006. As such, the

court analyzes the request under the Rule 16(b)(4)5

 “good cause”

standard, which the court explained in Kirkwood I and need not

repeat here. 

The court began its analysis in Kirkwood I by noting that

plaintiffs had not stated specifically why they were unable to

complete discovery within the allotted time; plaintiffs’ counsel

had simply asserted he had experienced difficulties getting his

clients to respond to requests to assist in discovery. Now

plaintiffs advance a different explanation, alleging that their

failure to conduct discovery during the allotted time was due to

defendants’ not honoring an agreement to allow depositions after

the discovery deadline. 

Plaintiffs’ new allegations are insufficient to warrant

reconsidering the court’s previous analysis in Kirkwood I of their

motion for extension. First, the allegations are wholly

unsupported. Plaintiffs offer no evidence of the alleged agreement

or of any of their alleged attempts to conduct discovery during the

allotted period. They assert that the “parties began to discuss
- 6 -

[deposition issues] several months ago and engaged in a course of

correspondence, emails, and telephonic conferences,” Ps. Mot. 6,

but they provide no proof of these communications. Second,

defendants properly call into question the credibility of

plaintiffs’ account by noting that plaintiffs did not refer to the

alleged agreement in their earlier motion for enlargement, where

they relied instead on alleged difficulties with their clients.

Assuming arguendo that there was such an agreement, plaintiffs

fail to explain why they waited until the last day of the discovery

deadline to request the depositions. Despite their allegations of

communicating with defendants about deposition issues, plaintiffs

do not contest the court’s finding in Kirkwood I that plaintiffs

did not actually request the depositions until the final day of

discovery. See Kirkwood I, 2007 WL 2325222, at *2. Defendants, on

the other hand, have adduced evidence that they initiated

deposition requests as early as September 2006, seeking to schedule

them on May 8, 2007, and serving notices of intent to take

depositions on May 29, 2007. See Ds. App. 1-6. If these

communications occurred as a part of the alleged agreement,

plaintiffs should have adduced similar evidence of their attempts

to request depositions well before the discovery deadline.

Plaintiffs have not filed a reply brief contesting any of

defendants’ assertions or providing support for their account of

the agreement. As noted in Kirkwood I, plaintiffs instead “have
6

In addition to the motions to extend and compel discovery,

plaintiffs move pursuant to Rule 56(f) to stay further proceedings

on defendants’ motion for summary judgment pending a ruling on

their motions to compel discovery and to reconsider. The court

denies the motion as moot because the court is deciding the motion

before deciding defendants’ motion for partial summary judgment.

- 7 -

shown a pattern of disregarding court-ordered deadlines. This

tends to establish that plaintiffs’ failure to meet a discovery

deadline that allowed them almost one full year for discovery is

not the result of circumstances beyond the control of their

diligent efforts, but is instead due to their own neglect.”

Kirkwood I, 2007 WL 2325222, at *3. 

Accordingly, the court holds that plaintiffs have failed to

establish the good cause required to warrant modifying the

scheduling order in this case. See, e.g., Am. Tourmaline Fields v.

Int’l Paper Co., 1998 WL 874825, at *1 (N.D. Tex. Dec. 7, 1998)

(Fitzwater, J.) (citing Johnson v. Mammoth Recreations, Inc., 975

F.2d 604, 609 (9th Cir. 1992)).6

C

The court also denies plaintiffs’ alternative motion to strike

defendants’ motion for summary judgment. 

Plaintiffs advance as the basis for this motion defendants’

alleged misconduct in not honoring the alleged agreement to allow

depositions to be taken after the discovery deadline. For the

reasons already explained, the court rejects this argument on the

ground that it is not sufficiently supported and therefore cannot
- 8 -

serve as a basis to impose sanctions on defendants. 

The court also finds that defendants have adequately explained

why they took the depositions outside the discovery period. They

have adduced evidence of diligence during the discovery period by

attempting to schedule the depositions as early as October 2006.

Ds. App. 1. Defendants contend that plaintiffs did not respond to

their request and were thus unable to schedule the depositions

until much later. Plaintiffs do not refute this contention or

otherwise argue that defendants were not diligent in conducting

discovery during the allotted period. 

The court concludes that plaintiffs’ unsupported allegations

of an agreement to conduct depositions after the discovery deadline

are insufficient to establish good cause under Rule 16(b), or to

serve as a basis for striking defendants’ motion for summary

judgment. Accordingly, the court denies plaintiffs’ motion to

strike defendants’ motion for partial summary judgment.

III

The court now turns to defendants’ motion for partial summary

judgment.

A

Kirkwood and Cole, both African-American, were employees of

the Inca Metals’ Dallas Tube and Rollform division until February
7

Because plaintiffs did not respond to defendants’ motion for

summary judgment, the court draws its recitation of the facts from

plaintiffs’ complaint and defendants’ “Statement of Undisputed

Facts” contained in their summary judgment brief. The court

recounts the evidence favorably to plaintiffs as the summary

judgment nonmovants, and draws all reasonable inferences in their

favor. E.g., U.S. Bank Nat’l Ass’n v. Safeguard Ins. Co., 422

F.Supp.2d 698, 701 n.2 (N.D. Tex. 2006) (Fitzwater, J.) (citing

Clift v. Clift, 210 F.3d 268, 270 (5th Cir. 2000)). 

- 9 -

3, 2003.7 Kirkwood began employment with Inca Metals on May 16,

1975 as a catcher, and later progressed to a master operator

position. Cole was hired in 1985 and worked as an operator until

his employment concluded. Plaintiffs allege that they were subject

to racial harassment by Shepherd, the Plant Supervisor. The

harassment consisted of cursing, yelling, making discriminatory

remarks, and excessive monitoring. Specifically, plaintiffs

contend that during the last few months of their employment,

Shepherd maintained excessive watch over their work area, failed to

maintain the machines plaintiffs used, and made derogatory and

racist remarks when Kirkwood took the initiative to repair the

machines himself. When they complained of these incidents to

Hutchins, the Plant Manager, he did not provide a satisfactory

response. Plaintiffs also allege that Inca Metals discriminatorily

reduced their work hours. When additional work became available,

it was given to non-African-American temporary workers, whom

plaintiffs believed to be undocumented aliens. This occurred on

several occasions, despite plaintiffs’ eager requests for more work

hours.
- 10 -

Plaintiffs resigned their employment in February 2003, after

complaining to Hutchins about working conditions and Shepherd’s

conduct and attitude. They filed charges of racial discrimination

with the Equal Employment Opportunity Commission (“EEOC”), alleging

that they were subjected to racial harassment from June 2002 until

they resigned in 2003. In their first amended complaint

(“complaint”), in addition to the allegations contained in their

EEOC charges, plaintiffs aver that the reduction of their regular

workload was discriminatory, that they were subjected to

retaliation, and that Shepherd discriminated against Kirkwood on

the basis of his age. 

B 

Defendants filed their summary judgment motion on August 1,

2007. Plaintiffs’ response was due 20 days thereafter. See N.D.

Tex. Civ. R. 7.1(e) (“A response and brief to an opposed motion

must be filed within 20 days from the date the motion is filed.”).

Plaintiffs have not responded. 

Plaintiffs’ failure to respond to defendants’ motion does not

permit the court to enter a “default” summary judgment, but the

court may accept as true all of defendants’ undisputed facts. See

Tutton v. Garland Indep. Sch. Dist., 733 F. Supp. 1113, 1117 (N.D.

Tex. 1990) (Fitzwater, J.). Moreover, “[a] summary judgment

nonmovant who does not respond to the motion is relegated to her

unsworn pleadings, which do not constitute summary judgment
8Plaintiffs have presented various motions to extend discovery

and summary judgment response deadlines. The court denied these

motions in Kirkwood I, 2007 WL 2325222, at *1, and it adheres to

these decisions today.

- 11 -

evidence.” Bookman v. Shubzda, 945 F. Supp. 999, 1002 (N.D. Tex.

1996) (Fitzwater, J.) (citing Solo Serve Corp. v. Westowne Assocs.,

929 F.2d 160, 165 (5th Cir. 1991)). Accordingly, although in this

memorandum opinion the court has recounted certain allegations in

plaintiffs’ complaint to facilitate an understanding of the conduct

of which they complain, it has not considered the factual

allegations to be competent summary judgment evidence.8

IV

The court considers first whether plaintiffs exhausted the

administrative remedies for their retaliation claims and Kirkwood’s

age discrimination claim. Defendants contend that these claims are

barred because plaintiffs did not exhaust them in their EEOC

charges. The court agrees and grants summary judgment dismissing

plaintiffs’ retaliation claims and Kirkwood’s age discrimination

claim.

A

Filing a charge with the EEOC is a condition precedent to

filing a Title VII suit. See Young v. City of Houston, Tex., 906

F.2d 177, 179 (5th Cir. 1990). This is also true of a suit under

the ADEA. See Gustafson, Inc. v. Bunch, 1999 WL 304560, at *6

(N.D. Tex. May 7, 1999) (Fitzwater, J.) (citing 29 U.S.C. § 626(d);
9

A § 1981 claim need not be exhausted. See, e.g., Alpha

Portland Cement Co. v. Reese, 507 F.2d 607, 608-10 (5th Cir. 1975);

King, 2007 WL 2005541, at *10. In plaintiffs’ complaint, however,

their § 1981 claim is limited to a discrimination claim. Am.

Compl. § VI(A). Their retaliatory discharge claims are based on

Title VII and the TCHRA. Id. at §§ VI(D) and VII(B). Therefore,

there is no 1981-based retaliation claim that survives summary

judgment.

- 12 -

Young, 906 F.2d at 179), aff’d, No. 99-11289, 244 F.3d 134 (5th

Cir. Dec. 8, 2000) (per curiam) (unpublished table decision).

Additionally, “[t]he [THCRA] requires the exhaustion of state

remedies as a jurisdictional prerequisite.” Jones v. Grinnell

Corp., 235 F.3d 972, 974 (5th Cir. 2001) (citing Schroeder v. Tex.

Iron Works, Inc., 813 S.W.2d 483, 485 (Tex. 1991)). “If a

complainant fails to exhaust his state administrative remedies, the

Texas Human Rights Act jurisdictionally bars this court from

hearing the case regardless of equitable and policy concerns.” Id.

(citing Zevator v. Methodist Hosp. of Houston, 1995 WL 500637, at

*2 (S.D. Tex. Mar. 30, 1995); Ridgway’s Inc. v. Payne, 853 S.W.2d

659, 663 (Tex. App. 1993, no writ)).9

“The lawsuit that follows is limited in scope to the EEOC

investigation that could reasonably be expected to grow out of the

charge of discrimination. In other words, the complaint may

encompass any kind of discrimination ‘like or related to’

allegations contained in the EEOC charge.” Hayes v. MBNA Tech.,

Inc., 2004 WL 1283965, at *3 (N.D. Tex. June 9, 2004) (Fitzwater,

J.) (citations omitted).
10Except for an insignificant typographical error, Cole’s

charges read exactly as do Kirkwood’s. 

11As do defendants, see Ds. Br. 8 n.8, the court recognizes

that a retaliation claim need not be exhausted where the person

complains of retaliation for filing the EEOC charge itself. But

because plaintiffs complain of retaliatory acts that preceded the

filing of their EEOC charges, they do not fall within this

- 13 -

B

Each plaintiff only checked the box marked “race” on his

charge of discrimination. Neither the “age” nor “retaliation” box

was checked. Moreover, each described the harm he suffered as

follows:

From on or around June 26, 2002 and continuing

until I was forced to quit my position I was

subjected to a racially hostile work

environment. I was harassed by being yelled

at, cursed at by the Plant Supervisor. I was

monitored on a constant basis by being

watched. I was given less overtime hours than

non-Black employees.10

Ds. App. 58, 123. 

The court recognizes that plaintiffs’ failure to check a

particular box is not of itself dispositive. See Pacheco v.

Mineta, 448 F.3d 783, 792 (5th Cir. 2006) (“To be clear, we do not

require that a Title-VII plaintiff check a certain box or recite a

specific incantation to exhaust his or her administrative remedies

before the proper agency.” (footnote omitted)). But there is no

indication in plaintiffs’ EEOC charges, in the corresponding charge

questionnaires, or any other materials presented to the EEOC that

show that plaintiffs exhausted their retaliation claims11 or that
exception. See Hayes, 2004 WL 1283965, at *9. “Where the alleged

retaliation occurs before the initial EEOC charge is filed, a

plaintiff must exhaust his administrative remedies on that claim.”

McCray v. DPC Indus., Inc., 942 F. Supp. 288, 295 (E.D. Tex. 1996).

- 14 -

Kirkwood exhausted his age discrimination claim. See, e.g., Hayes,

2004 WL 1283965, at *8 (holding that plaintiff did not exhaust

retaliation claim where she did not check retaliation box on EEOC

charge and did not mention word retaliation or explicitly assert

retaliatory-type conduct in attachment to EEOC questionnaire);

Perez v. MCI World Com Commc’ns, 154 F.Supp.2d 932, 938 (N.D. Tex.

2001) (Buchmeyer, J.) (“Plaintiff did not check the ‘retaliation’

box on the Charge, nor did she include any statements [in her

charge or questionnaire] regarding retaliation. Therefore,

Plaintiff failed to exhaust her administrative remedies for the

claim of retaliation . . . .”). 

Accordingly, because plaintiffs did not indicate that they

were complaining of retaliation in their EEOC charges, and because

Kirkwood did not complain of age discrimination in his, and because

these claims are not sufficiently “like or related to the

allegations in the EEOC charge,” the court holds that plaintiffs

failed to exhaust their administrative remedies on the retaliation

claims and Kirkwood’s age discrimination claim, and it dismisses

these claims.
- 15 -

V

Defendants also move for summary judgment on plaintiffs’ claim

of discriminatory denial of work. 

A

In their complaint, plaintiffs allege that they were denied

work hours and overtime. Defendants move for summary judgment

dismissing these claims to the extent they are based on Title VII,

the TCHRA, and § 1981. They maintain that plaintiffs’ workloads

were reduced due to a decrease in business, and that, when work

became available, Inca Metals used less-expensive temporary

workers. Defendants point to plaintiffs’ testimony in response to

questions about the decreases in business and substitute labor.

They aver that they have offered a legitimate, nondiscriminatory

reason for the reduction of workload and denial of overtime. 

B

In a case such as this one, where plaintiffs lack direct

evidence of discrimination, they can prove discrimination using the

“modified McDonnell Douglas approach.” Rachid v. Jack in the Box,

Inc., 376 F.3d 305, 312 (5th Cir. 2004). As modified, McDonnell

Douglas consists of three stages. Plaintiffs must first establish

a prima facie case of discrimination, which “creates a presumption

that the employer unlawfully discriminated against [them].” Tex.

Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 254 (1981). The

burden then shifts to the employer to articulate a legitimate,
- 16 -

nondiscriminatory reason for the adverse employment action. St.

Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506-07 (1993). The

defendant’s burden is one of production, not proof, and involves no

credibility assessments. See, e.g., West v. Nabors Drilling USA,

Inc., 330 F.3d 379, 385 (5th Cir. 2003) (Fitzwater, J.) (age

discrimination case). The McDonnell Douglas presumption places

upon the defendant the burden of producing an explanation to rebut

the prima facie case——i.e., the burden of “producing evidence” that

the adverse employment actions were taken “for a legitimate,

nondiscriminatory reason.” Burdine, 450 U.S. at 254. “‘[T]he

defendant must clearly set forth, through the introduction of

admissible evidence, reasons for its actions which, if believed by

the trier of fact, would support a finding that unlawful

discrimination was not the cause of the employment action.” St.

Mary’s Honor Ctr., 509 U.S. at 507 (emphasis omitted) (quoting

Burdine, 450 U.S. at 254-55 & n.8). A defendant fails to meet the

production burden when it does not “introduce evidence which, taken

as true, would permit the conclusion that there was a

nondiscriminatory reason for the adverse action.” Id. at 509

(emphasis in original). 

After the employer articulates its legitimate,

nondiscriminatory reason for the adverse employment action, the

burden shifts back to the plaintiff to demonstrate that the reason

produced was a pretext for discrimination. The plaintiff can
- 17 -

satisfy this burden by showing “that the legitimate reasons offered

by [the employer] were not its true reasons, but were a pretext for

discrimination.” Reeves v. Sanderson Plumbing Prods., Inc., 530

U.S. 133, 143 (2000) (quoting Burdine, 450 U.S. at 253). That is,

he must produce sufficient evidence for a reasonable trier of fact

to find either that the employer’s proffered explanation is

unworthy of credence or that a discriminatory reason more likely

motivated the adverse employment action. See Burdine, 450 U.S. at

256. 

C

In their motion, defendants do not address whether plaintiffs

have satisfied their prima facie burden. Defendants simply posit

that they have set forth a legitimate, nondiscriminatory reason for

plaintiffs’ reduced workload. Because defendants must satisfy the

burden of offering a nondiscriminatory reason for the adverse

action only after plaintiffs have satisfied their prima facie

burden, the court will assume that, for purposes of their motion,

defendants do not contest that plaintiffs have satisfied this

burden. The court will therefore confine its analysis to the

second McDonnell Douglas step. 

Defendants must satisfy their burden of production by adducing

evidence of their proffered legitimate, nondiscriminatory reason

for the reduced workload, namely that a decrease in business

reduced all employees’ workloads, and that they used less expensive
12The court has seen cases in which defendants rely on

plaintiff’s evidence and on their own evidence to satisfy their

burden of production. It is unusual, however, for a defendant to

rely exclusively on evidence derived from the plaintiffs, since

employers can easily develop evidence from their own sources that

demonstrates they had a legitimate, nondiscriminatory reason for

taking the adverse employment action in question.

- 18 -

labor in plaintiffs’ stead as a “business decision based on saving

money and cutting costs.” Ds. Br. 9. “‘[T]he defendant must

clearly set forth, through the introduction of admissible

evidence,’ reasons for its actions which, if believed by the trier

of fact, would support a finding that unlawful discrimination was

not the cause of the employment action.” See St. Mary's Honor

Ctr., 509 U.S. at 507 (quoting Burdine, 450 U.S. at 254-255, and n.

8) (emphasis omitted). The requirement of adducing evidence is

important in determining whether defendants have clearly set forth

a legitimate, nondiscriminatory reason. “The burden of production

requires more than an assertion, it requires evidence.” Sabrah v.

Lucent Techs., Inc., 1998 WL 792503, at *4 (N.D. Tex. Nov. 6, 1998)

(Fitzwater, J.). 

Defendants take a somewhat unusual approach in this case in

attempting to meet their burden of production.12 Rather than

introduce evidence from one of their own employees who has personal

knowledge about Inca Metals’ work-hour and overtime policies, they

rely on portions of plaintiffs’ deposition testimony. In testimony

that is not completely coherent, plaintiffs appear to agree that

everyone’s workload was reduced and that the substitute labor was
- 19 -

cheaper. Defendants’ evidence in support of the proffered

legitimate, nondiscriminatory reason for the reduced workloads is

contained on pages of Kirkwood’s and Cole’s depositions that

contain the following pertinent exchanges: 

Q. Was it everyone’s workload reduced due to

a decrease in business?

A. What was that?

[Objection]

Q. Wasn’t everyone’s workload reduced due to

a decrease in business? 

A. Yes, and some things. 

Ds. App. 75 (Cole deposition). 

Q. So the temps were a lot cheaper than you?

A. Yeah. But such, like I said, they could

have let us make 40 hours. Everybody

else was getting overtime, but we was

held back to 36 hours . . . .

Id. at 17 (Kirkwood deposition).

Q. So the other guys that he brought over to

work on your line said they were cheaper?

[Objection]

Q. He said that they were cheaper? 

A. I mean, something. He said we need to go

home. They are making less money than we

was making. But we’d know what to do on

the line . . . .

Id. at 77 (Cole deposition).

The court notes initially that plaintiffs’ answers are not

clearly responsive to the questions asked. Where they appear to
13There is also a suggestion of combativeness in the Cole

deposition. See Ps. App. 76-77.

- 20 -

affirm the assertions of the questioner, their answers are

immediately followed by statements seemingly unrelated to the

question, suggesting lack of comprehension.13 Nor is it clear from

the context of the questions and responses whether plaintiffs are

attesting to information based on their personal knowledge, or are

simply recounting what they have heard from others. 

More important, the evidence at most suggests some perception

by plaintiffs——assuming defendants’ interpretation of the testimony

is sufficiently clear——that there was a reduction in business and

that defendants used cheaper substitute labor. Plaintiffs’

unclearly articulated perception of Inca Metals’ business conduct,

however, does not satisfy defendants’ obligation to introduce

evidence that is adequate to “clearly set forth” a legitimate,

nondiscriminatory reason for the workload reduction. Defendants

are in the best position to proffer evidence of their business

practices, without having to rely on plaintiffs’ cursory

statements. Cf., e.g., Evans v. City of Houston, 246 F.3d 344, 351

n.5 (5th Cir. 2001) (holding that defendant satisfied burden of

production by producing evidence consisting of various and detailed

internal memoranda and letters, as well as deposition testimony of

supervisor and coworkers).
- 21 -

Moreover, although the court does not assess the credibility

of defendants’ proffered explanation, defendants are nevertheless

obligated to adduce “evidence which, taken as true, would permit

the conclusion that there was a nondiscriminatory reason for the

adverse action.” St. Mary’s Honor Ctr., 509 U.S. at 509. The

evidence that defendants have produced, which consists of

plaintiffs’ meager and somewhat unclear statements pertaining to

Inca Metals’ business practices, is insufficient, even when taken

as true. The evidence does not permit the conclusion that Inca

Metals was undergoing a decrease in business that necessitated a

company-wide reduction in employee workloads, or that Inca Metals

substituted less-expensive workers in plaintiffs’ stead, any more

than would plaintiffs’ stated perceptions that the substitute labor

force was composed of illegal aliens permit the conclusion that the

company in fact employed undocumented workers. 

Because defendants have not met their burden of production,

the court denies defendants’ motion to the extent they seek summary

judgment dismissing plaintiffs’ claims based on discriminatory

denial of work.

VI

The court now considers plaintiffs’ claims for intentional

infliction of emotional distress.
- 22 -

A

Defendants move for summary judgment dismissing these claims

on the grounds that plaintiffs have not brought an action for

intentional infliction of emotional distress that is independent of

their statutory discrimination claims. The court agrees.

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

2004), the Texas Supreme Court reiterated that intentional

infliction of emotional distress was originally recognized to be a

“‘gap-filler’ tort, judicially created for the limited purpose of

allowing recovery in those rare instances in which a defendant

intentionally inflicts severe emotional distress in a manner so

unusual that the victim has no other recognized theory of redress.”

Id. at 447. In Hoffmann-LaRoche the court addressed the claims of

a plaintiff who sued her former employer for sexual harassment and

intentional infliction of emotional distress. Id. at 441-42. It

held that because the gravamen of her complaint was sexual

harassment, she was unable to pursue both claims unless she proved

acts independent of her sexual harassment claim that supported a

claim for intentional infliction of emotional distress. See id. at

441.

The gravamen of plaintiffs’ claims for intentional infliction

of emotional distress is their claims for discrimination,

harassment, and retaliation. Plaintiffs explicitly acknowledge

that they do not rely on acts independent of these claims to hold
- 23 -

defendants liable for intentional infliction of emotional distress.

See Ds. App. 20, 78-79. Because plaintiffs do not assert an

intentional infliction of emotional distress cause of action that

is based on acts independent of those underlying their statutory

claims, the court dismisses the intentional infliction of emotional

distress claims.

VII

The court addresses next defendants’ contention that

plaintiffs’ claims for back and front pay should be barred——partly,

if not completely——because plaintiffs failed to mitigate their

damages. 

A

Defendants maintain that Cole admitted not making any effort

to look for work between his resignation with Inca Metals on

February 3, 2003 and the start of his job in New Orleans in May

2005. Defendants also contend that Kirkwood’s efforts to find

employment are insufficient as a matter of law, and that any

computation of back pay must exclude the period during which

Kirkwood received disability benefits. 

B

Title VII requires plaintiffs to mitigate damages by being

reasonably diligent in seeking employment substantially equivalent

to the position lost. Ford Motor Co. v. EEOC, 458 U.S. 219, 231-32

(1982). The reasonableness of a Title VII claimant’s diligence
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“should be evaluated in light of the individual characteristics of

the claimant and the job market.” Sellers v. Delgado Coll., 902

F.2d 1189, 1193 (5th Cir. 1990) (citing Rasimas v. Mich. Dep’t of

Mental Health, 714 F.2d 614, 624 (6th Cir. 1983)). “‘Substantially

equivalent employment’ is that ‘employment which affords virtually

identical promotional opportunities, compensation, job

responsibilities, working conditions, and status as the position

from which the Title VII claimant has been discriminatorily

terminated.’” Id. (citing Sellers v. Delgado Coll., 839 F.2d 1132,

1138 (5th Cir. 1998)).

Although it is plaintiffs’ duty to mitigate, the employer has

the burden of proving failure to mitigate. Sellers, 839 F.2d at

1139. To meet this burden, an employer may demonstrate that

substantially equivalent work was available and that the Title VII

claimant did not exercise reasonable diligence to obtain it. Id.

If an employer proves that an employee has not made reasonable

efforts to obtain work, however, the employer does not also have to

establish the availability of substantially equivalent employment.

Id.

Because defendants will bear the burden of proving this

affirmative defense at trial, they “must establish ‘beyond

peradventure all of the essential elements of the . . . defense.’”

Bank One, Tex., N.A. v. Prudential Ins. Co. of Am., 878 F. Supp.

943, 962 (N.D. Tex. 1995) (Fitzwater, J.) (quoting Fontenot v.
- 25 -

Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986)). The court has

noted that the “beyond peradventure” standard is “heavy.” See,

e.g., Cont’l Cas. Co. v. St. Paul Fire & Marine Ins. Co., 2007 WL

2403656, at *10 (N.D. Tex. Aug. 23, 2007) (Fitzwater, J.)

(“Accordingly, even if the court were to accept St. Paul’s

argument, it would be insufficient under the heavy beyond

peradventure standard to obtain summary judgment on an affirmative

defense as to which it will have the burden of proof at trial.”

(internal quotation marks and citation omitted)).

C

The court first reviews the summary judgment evidence as to

Cole’s efforts to mitigate. As defendants point out, Cole

explicitly admitted not starting to look for work after his

resignation with Inca Metals until “the job came up there in New

Orleans.” Ds. App. 64. Because Cole did not make any effort to

find employment, the court holds that he is not entitled to recover

back pay for the period of time between his resignation from Inca

Metals and when he found employment in New Orleans. See Hansard v.

Pepsi-Cola Metro. Bottling Co., 865 F.2d 1461, 1468 (5th Cir. 1989)

(holding that plaintiff was not entitled to back pay for period

during which plaintiff admitted he stopped looking for work).

Kirkwood, on the other hand, testified that, after leaving

Inca Metals, he visited an “employment office,” called for job

interviews, and drove around asking and taking applications. Ds.
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App. 10-11. Although he remembers only one specific company where

he sought work, Kirkwood alleges that he went to several places,

but was still unable to obtain employment. Id. Defendants rely on

Sellers for the proposition that minimal efforts are insufficient

to satisfy the reasonable diligence requirement, and that under

this standard Kirkwood has failed to demonstrate reasonable

diligence. In Sellers the Fifth Circuit upheld a magistrate’s

finding that the plaintiff’s minimal job search——averaging less

than one job application per month over a three-year period——failed

to satisfy the reasonable diligence requirement. But the Sellers

court evaluated the plaintiff’s job-search efforts under the

Rasimas requirement to evaluate reasonableness “in light of the

individual characteristics of the claimant and the job market.”

Sellers, 902 F.2d at 1193. The court thus focused on certain

factors that heightened the diligence requirement for the plaintiff

in that case, noting that “it was especially important that the

relatively inexperienced [claimant] actively seek employment during

[the period immediately following her discharge] . . . because the

longer she separated herself from her newly acquired professional

skills, the more difficulty she would have persuading prospective

employers to accept her as a qualified professional.” Id. at 1194.

Considerations of this kind direct the analysis in the opposite

direction in the present case, given that Kirkwood is admittedly an

older worker. Kirkwood in fact ascribes some of his difficulties
14In this portion of their argument, defendants also posit that

Kirkwood is not entitled to any damages after April 2005, because

he announced at that time an intention to retire. Defendants cite

no relevant authority for this proposition, nor do they address the

fact that Kirkwood has not in fact fully retired from employment.

Accordingly, although this evidence may impact the determination

whether to award back pay in a particular amount, the court

declines to grant summary judgment limiting a back pay award on

this basis. 

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in finding a job to his age. Ds. App. 10. Based on the summary

judgment evidence, the court cannot conclude that defendants have

met the heavy standard of establishing beyond peradventure that

Kirkwood was not reasonably diligent in seeking employment

substantially equivalent to the position lost. Accordingly, the

court declines to grant summary judgment on this basis precluding

Kirkwood from recovering back pay.

Similarly, the court declines to grant summary judgment

dismissing back pay awards during the period that Kirkwood was

receiving disability benefits.14 Although defendants cite multiple

cases from other circuits for the proposition that computation of

back pay awards should exclude periods of disability, the rule in

this circuit is that district courts have discretion in deciding

whether to deduct periods of disability from back pay awards.

Johnston v. Harris County Flood Control Dist., 869 F.2d 1565, 1581

(5th Cir. 1989) (concluding that district court “may exercise its

discretion in deciding whether to deduct social security disability

benefits from back pay awards”); see also Johnson v. Chapel Hill

Indep. Sch. Dist., 853 F.2d 375, 382 (5th Cir. 1988) (holding that
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“the district court has discretion to decide whether unemployment

compensation should be deducted from a back pay or front pay

award.”). The court therefore holds that defendants are not

entitled to summary judgment dismissing Kirkwood’s claim for back

pay during the time in which he received disability benefits. 

* * *

 Accordingly, defendants’ August 1, 2007 motion for partial

summary judgment is granted in part and denied in part.

Plaintiffs’ August 16, 2007 motion to reconsider plaintiffs’ motion

for enlargement, and their August 16, 2007 motion to extend and to

compel discovery or, alternatively, motion to strike defendants’

motion for summary judgment are denied. 

SO ORDERED.

January 30, 2008.

_________________________________

SIDNEY A. FITZWATER

CHIEF JUDGE