Jennings v. O'Reilly Auto Enterprises, LLC
Filing
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MEMORANDUM OPINION AND ORDER. It is therefore ORDERED that Plaintiff's Motion for Judgment on the Pleadings and/or Partial Summary Judgment Regarding Defendant's Affirmative Defenses is GRANTED IN PART and DENIED IN PART (Dkt. 22 ). It is further ORDERED that Defendant's Motion for Summary Judgment is DENIED (Dkt. 24 ). Signed by District Judge Amos L. Mazzant, III on 1/22/2019. (baf, )
United States District Court
EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION
JEFFREY A. JENNINGS,
v.
O’REILLY AUTO ENTERPRISES, LLC
d/b/a O’REILLY AUTO PARTS
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Civil Action No. 4:17-CV-00837
Judge Mazzant
MEMORANDUM OPINION AND ORDER
Pending before the Court are Plaintiff Jeffrey A. Jennings Motion for Judgment on the
Pleadings and/or Partial Summary Judgment Regarding Defendant’s Affirmative Defenses
(Dkt. #22) and Defendant O’Reilly Auto Enterprises, LLC d/b/a O’Reilly Auto Parts’ Motion for
Summary Judgment and Brief in Support (Dkt. #24). Having considered the motions and the
relevant pleadings, the Court finds that Plaintiff’s Motion for Judgment on the Pleadings and/or
Partial Summary Judgment should be granted in part and denied in part (Dkt. #22) and
Defendant’s Motion for Summary Judgment should be denied (Dkt. #24).
BACKGROUND
On December 6, 2017, Plaintiff filed suit against Defendant alleging two claims: (1) age
discrimination under the Age Discrimination in Employment Act (“ADEA”) and Texas
Commission on Human Rights Act (“TCHRA”) and (2) retaliation under the Family Medical
Leave Act (“FMLA”) (Dkt. #1 ¶¶ 37–47). On October 5, 2018, Plaintiff filed his Motion for
Judgment on the Pleadings and/or Partial Summary Judgment (Dkt. #22). Defendant filed a
response to Plaintiff’s motion on October 26, 2018 (Dkt. #27). Plaintiff filed a reply to the
motion on November 2, 2018 (Dkt. #31).
November 9, 2018 (Dkt. #35).
Defendant filed a sur-reply to the motion on
Following the same schedule, on October 5, 2018, Defendant filed its Motion for
Summary Judgment (Dkt. #24). Plaintiff filed a response to Defendant’s motion on November
26, 2018 (Dkt. #29). Defendant filed a reply to the motion on November 2, 2018 (Dkt. #33).
Plaintiff filed a sur-reply to the motion on November 9, 2018 (Dkt. #34).
LEGAL STANDARD
I.
Federal Rule of Civil Procedure 12(c)
Federal Rule of Civil Procedure 12(c) provides that “[a]fter the pleadings are closed—but
early enough not the delay trial—a party may move for judgment on the pleadings.” “A motion
brought pursuant to FED. R. CIV. P. 12(c) is designed to dispose of cases where the material facts
are not in dispute and a judgment on the merits can be rendered by looking to the substance of
the pleadings and any judicially noticed facts.” Hebert Abstract Co. v. Touchstone Props., Ltd.,
914 F.2d 74, 76 (5th Cir. 1990) (citation omitted); Great Plains Tr. Co. v. Morgan Stanley Dean
Witter & Co., 313 F.3d 305, 312–13 (5th Cir. 2002). “The central issue is whether, in the light
most favorable to the plaintiff, the complaint states a valid claim for relief.” Hughes v. Tobacco
Inst., Inc., 278 F.3d 417, 420 (5th Cir. 2001) (citing St. Paul Mercury Ins. Co. v. Williamson, 224
F.3d 425, 440 n.8 (5th Cir. 2000)).
“Pleadings should be construed liberally, and judgment on the pleadings is appropriate
only if there are no disputed issues of fact and only questions of law remain.” Great Plains Tr.,
313 F.3d at 312 (quoting Hughes, 278 F.3d at 420). The standard applied under Rule 12(c) is the
same as that applied under Rule 12(b)(6). Ackerson v. Bean Dredging, LLC, 589 F.3d 196, 209
(5th Cir. 2009); Guidry v. Am. Pub. Life Ins. Co., 512 F.3d 177, 180 (5th Cir. 2007).
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II.
Summary Judgment
The purpose of summary judgment is to isolate and dispose of factually unsupported
claims or defenses. Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986). Summary judgment
is proper under Rule 56(a) of the Federal Rules of Civil Procedure “if the movant shows that
there is no genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” FED. R. CIV. P. 56(a). A dispute about a material fact is genuine when “the
evidence is such that a reasonable jury could return a verdict for the nonmoving party.”
Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248 (1986). Substantive law identifies which
facts are material. Id. The trial court “must resolve all reasonable doubts in favor of the party
opposing the motion for summary judgment.” Casey Enters., Inc. v. Am. Hardware Mut. Ins.
Co., 655 F.2d 598, 602 (5th Cir. 1981).
The party seeking summary judgment bears the initial burden of informing the court of its
motion and identifying “depositions, documents, electronically stored information, affidavits or
declarations, stipulations (including those made for purposes of the motion only), admissions,
interrogatory answers, or other materials” that demonstrate the absence of a genuine issue of
material fact. FED. R. CIV. P. 56(c)(1)(A); Celotex, 477 U.S. at 323. If the movant bears the
burden of proof on a claim or defense for which it is moving for summary judgment, it must
come forward with evidence that establishes “beyond peradventure all of the essential elements
of the claim or defense.” Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986). Where
the nonmovant bears the burden of proof, the movant may discharge the burden by showing that
there is an absence of evidence to support the nonmovant’s case. Celotex, 477 U.S. at 325; Byers
v. Dall. Morning News, Inc., 209 F.3d 419, 424 (5th Cir. 2000). Once the movant has carried its
burden, the nonmovant must “respond to the motion for summary judgment by setting forth
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particular facts indicating there is a genuine issue for trial.” Byers, 209 F.3d at 424 (citing
Anderson, 477 U.S. at 248–49). A nonmovant must present affirmative evidence to defeat a
properly supported motion for summary judgment. Anderson, 477 U.S. at 257. Mere denials of
material facts, unsworn allegations, or arguments and assertions in briefs or legal memoranda
will not suffice to carry this burden. Rather, the Court requires “significant probative evidence”
from the nonmovant to dismiss a request for summary judgment. In re Mun. Bond Reporting
Antitrust Litig., 672 F.2d 436, 440 (5th Cir. 1982) (quoting Ferguson v. Nat’l Broad. Co., 584
F.2d 111, 114 (5th Cir. 1978)). The Court must consider all of the evidence but “refrain from
making any credibility determinations or weighing the evidence.” Turner v. Baylor Richardson
Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007).
ANALYSIS
The Court addresses Plaintiff’s Motion for Judgment on the Pleadings and/or Partial
Summary Judgment (Dkt. #22) before turning to Defendant’s Motion for Summary Judgment
(Dkt. #24).
I.
Plaintiff’s Motion for Judgment on the Pleadings and/or Summary Judgment
Summary Judgment
The Court considers Plaintiff’s summary judgment arguments first. Plaintiff moves for
summary judgment arguing there is no genuine issues of material fact on four of Defendant’s
affirmative defenses: (1) Ellerth/Faragher defense; (2) after-acquired evidence defense; (3)
failure to exhaust administrative remedies defense; and (4) failure to mitigate damages defense
(Dkt. #22) (referring to Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998); Faragher v. City
of Boca Raton, 524 U.S. 775 (1998)).
Regarding the Ellerth/Faragher defense, Plaintiff
contends the defense is inapplicable because this is not a harassment case (Dkt. #22 at p. 19)
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(citing E.E.O.C. v. Boh Bros. Const. Co., L.L.C., 731 F.3d 444, 462 (5th Cir. 2013)). “Normally
an employer is strictly liable for a supervisor’s harassment of an individual whom he or she
supervises.” Pullen v. Caddo Par. Sch. Bd., 830 F.3d 205, 209 (5th Cir. 2016) (citing Vance v.
Ball State Univ., 570 U.S. 421 (2013)).
“The Ellerth/Faragher affirmative defense is an
exception and is available to employers where a plaintiff alleges sexual harassment by a
supervisor but does not claim that the harassment resulted in a tangible employment action.” Id.
Defendant does not respond to Plaintiff’s argument or demonstrate how the Ellerth/Faragher
defense is applicable to this case. Once the movant has carried its burden, the nonmovant must
“respond to the motion for summary judgment by setting forth particular facts indicating there is
a genuine issue for trial.” Byers, 209 F.3d at 424 (citing Anderson, 477 U.S. at 248–49). A
nonmovant must present affirmative evidence to defeat a properly supported motion for
summary judgment. Anderson, 477 U.S. at 257. The Court finds that Defendant does not meet
its summary judgment burden, and summary judgment should be granted on Defendant’s
Ellerth/Faragher affirmative defense.
Concerning Defendant’s after-acquired evidence and failure to exhaust administrative
remedies defense, Defendant explains:
As it relates to each of the other defenses for which Mr. Jennings
seeks summary judgment, O’Reilly concedes that it has not
uncovered after-acquired evidence of wrongdoing to date that
would act to limit Mr. Jennings’s claimed damages. In pleading
the after-acquired evidence defense, O’Reilly did not contend it
had actual evidence of wrongdoing, but, rather, that if it were to
discover such evidence Mr. Jennings’s damages should be reduced
accordingly under the after-acquired evidence doctrine.
Concerning O’Reilly’s asserted defense regarding Mr. Jennings’s
failure to exhaust administrative remedies, O’Reilly asserts that
summary judgment is premature at this time. Specifically, if, in his
opposition to O’Reilly’s motion for summary judgment or at any
subsequent trial, Mr. Jennings attempts to raise matters that were
not properly raised in his Charge of Discrimination, O’Reilly
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reserves the right to raise a failure to exhaust administrative
remedies defense. For instance, at his deposition, Mr. Jennings
asserted for the first time that he should have been entitled to
bereavement leave following his wife’s passing even though he
indicated he did not intend to return to work at O’Reilly following
his wife’s passing. Should Mr. Jennings attempt to assert that the
denial of bereavement leave was in some way related to his age or
otherwise discriminatory, O’Reilly has the right to raise a failure to
exhaust defense based on the fact that Mr. Jennings never raised
any such claim before an appropriate administrative body as a
prerequisite to filing suit.
(Dkt. #27 at p. 1 n.3). Defendant does not provide competent summary judgment evidence to
support its after-acquired evidence defense and admits that its failure to exhaust administrative
remedies defense is merely precautionary. As a result, Defendant does not meet its summary
judgment burden as to these defenses, and summary judgment should be granted on Defendant’s
after-acquired evidence and failure to exhaust administrative remedies defenses.
Concerning Defendant’s failure to mitigate damages defense, after a careful review of the
record and the arguments presented, the Court is convinced that there are genuine issues of
material fact as to whether Plaintiff failed to mitigate his damages. Consequently, the Court will
not grant summary judgment on Defendant’s failure to mitigate damages affirmative defense.
Judgment on the Pleadings
Alternatively, Plaintiff moves for judgment on the pleadings pursuant to Federal Rule of
Civil Procedure 12(c). In essence, Plaintiff contends Defendant’s pleadings do not meet the
Federal pleading standards and, therefore, the Court should enter judgment on the affirmative
defenses (Dkt. #22 at pp. 5, 11–13). Defendant does not directly respond to Plaintiff’s Rule 12(c)
arguments (Dkt. #27; Dkt. #35).
The Court first notes that Plaintiff’s motion is delayed. Defendant’s filed their answer on
January 11, 2018 (Dkt. #6). Plaintiff did not move to strike, dismiss, or ask the Court to order
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Defendant to replead its affirmative defenses for nearly nine months. Instead, Plaintiff waited
until the dispositive motions deadline to claim the affirmative defenses were insufficiently
pleaded (Dkt. #21).
“A motion brought pursuant to FED. R. CIV. P. 12(c) is designed to dispose of cases where
the material facts are not in dispute and a judgment on the merits can be rendered by looking to
the substance of the pleadings and any judicially noticed facts.” Hebert Abstract Co., 914 F.2d
at 76 (citation omitted); Great Plains Tr. Co., 313 F.3d at 312–13. “The central issue is whether,
in the light most favorable to the plaintiff, the complaint states a valid claim for relief.” Hughes,
278 F.3d at 420 (citing Williamson, 224 F.3d at 440 n.8).
Considering the remaining defense at issue—the failure to mitigate damages defense—
the Court already determined there are genuine issues of material fact concerning the elements of
the defense. Accordingly, judgment on the pleadings should not be granted as to this defense.
Further, as clear from the Court’s reading of Plaintiff’s motion, Plaintiff does not lack fair notice
of the theories or the facts underlying Defendant’s failure to mitigate damages defense
(Dkt. #22). Therefore, the Court sees no reason to order Defendant to replead the defense. As a
result, the Court denies the relief requested by Plaintiff under Rule 12(c).
II.
Defendant’s Motion for Summary Judgment
Defendant argues the Court should grant summary judgment on Plaintiff’s FMLA and
age discrimination claim (Dkt. #24). After a careful review of the record and the arguments
presented, the Court is convinced that there are genuine issues of material fact on each element
of Plaintiff’s FMLA and age discrimination claims. Therefore, the Court finds that Defendant
does not meet its summary judgment burden, and Defendant’s motion for summary judgment
should be denied (Dkt. #24).
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CONCLUSION
It is therefore ORDERED that Plaintiff’s Motion for Judgment on the Pleadings and/or
Partial Summary Judgment Regarding Defendant’s Affirmative Defenses is GRANTED IN
PART and DENIED IN PART (Dkt. #22). Specifically, the Court enters summary judgment on
Defendant’s Ellerth/Faragher, after-acquired evidence, and failure to exhaust administrative
. remedies affirmative defenses. The Court denies all other relief requested by Plaintiff.
It is further ORDERED that Defendant’s Motion for Summary Judgment is DENIED
(Dkt. #24).
IT IS SO ORDERED.
SIGNED this 22nd day of January, 2019.
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AMOS L. MAZZANT
UNITED STATES DISTRICT JUDGE
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