Towery v. CBOCS Texas LLC

Filing 21

MEMORANDUM OPINION AND ORDER granting 18 MOTION for Summary Judgment filed by CBOCS Texas LLC. (Ordered by Judge Sidney A Fitzwater on 5/3/2016) (Judge Sidney A Fitzwater)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
ARTISSA TOWERY,
Plaintiff,
VS.
CBOCS TEXAS, LLC, d/b/a CRACKER
BARREL OLD COUNTRY STORE,
Defendant.

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§ Civil Action No. 3:15-CV-0122-D
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MEMORANDUM OPINION
AND ORDER
In this action by plaintiff Artissa Towery (“Towery”) against defendant CBOCS Texas, LLC,
d/b/a Cracker Barrel Old Country Store (“Cracker Barrel”), alleging claims for race discrimination,
under Title VII of the Civil Rights Act of 1964 (“Title VII”), and age discrimination, under the Age
Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. § 621 et seq., Cracker Barrel
moves for summary judgment, and Towery has not responded to the motion. For the reasons that
follow, the court grants the motion and dismisses this action by judgment filed today.1
I
Cracker Barrel terminated the employment of Towery, who is African-American and was
52-years old during the relevant time period. Towery sued Cracker Barrel, alleging that it
discharged her based on her race and age, in violation of Title VII and the ADEA. Cracker Barrel
moves for summary judgment, contending that Towery cannot establish a prima facie case and that

1

Under § 205(a)(5) of the E-Government Act of 2002 and the definition of “written opinion”
adopted by the Judicial Conference of the United States, this is a “written opinion[] issued by the
court” because it “sets forth a reasoned explanation for [the] court’s decision.” It has been written,
however, primarily for the parties, to decide issues presented in this case, and not for publication in
an official reporter, and should be understood accordingly.

Cracker Barrel had a good-faith, legitimate, nondiscriminatory basis to terminate her employment:
after Towery had already been disciplined for using the word “fag” in the workplace to refer to
homosexuals, she got into a physical altercation with another Cracker Barrel employee in the
workplace.
Cracker Barrel filed the instant motion for summary judgment on March 29, 2016. Towery
did not respond to the motion by the April 19, 2016 deadline,2 and the motion is ripe for
determination.
II
Because Cracker Barrel will not have the burden of proof at trial on Towery’s Title VII and
ADEA claims, it need only point the court to the absence of evidence of any essential element of
Towery’s claims. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once it does so, Towery
must go beyond her pleadings and designate specific facts demonstrating that there is a genuine issue
for trial. See id. at 324; Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (per
curiam). An issue is genuine if the evidence is such that a reasonable jury could return a verdict for
Towery. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Towery’s failure to
produce proof as to any essential element renders all other facts immaterial. Trugreen Landcare,
L.L.C. v. Scott, 512 F.Supp.2d 613, 623 (N.D. Tex. 2007) (Fitzwater, J.). Summary judgment is
mandatory if Towery fails to meet this burden. Little, 37 F.3d at 1076.
As noted, Towery has not responded to Cracker Barrel’s motion. Although her failure to
respond does not permit the court to enter a “default” summary judgment in Cracker Barrel’s favor,

2

See N.D. Tex. Civ. R. 7.1(e) (“A response and brief to an opposed motion must be filed
within 21 days from the date the motion is filed.”).
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see, e.g., Tutton v. Garland Independent School District, 733 F. Supp. 1113, 1117 (N.D. Tex. 1990)
(Fitzwater, J.), “[a] summary judgment nonmovant who does not respond to the motion is relegated
to her unsworn pleadings, which do not constitute summary judgment evidence,” Bookman v.
Shubzda, 945 F. Supp. 999, 1002 (N.D. Tex. 1996) (Fitzwater, J.) (citing Solo Serve Corp. v.
Westowne Associates, 929 F.2d 160, 165 (5th Cir. 1991)). Moreover,
[i]f a party fails . . . to properly address another party’s assertion of
fact as required by Rule 56(c), the court may . . . (2) consider the fact
undisputed for purposes of the motion [and] (3) grant summary
judgment if the motion and supporting materials—including the facts
considered undisputed—show that the movant is entitled to it[.]
Fed. R. Civ. P. 56(e)(2), (3).
Cracker Barrel has pointed the court to the absence of evidence to support Towery’s Title
VII and ADEA claims. See, e.g., D. Br. at 10-11. Because Towery has failed to respond to Cracker
Barrel’s motion, she is “relegated to her unsworn pleadings, which do not constitute summary
judgment evidence.” Bookman, 945 F. Supp. at 1002. Towery has therefore failed to raise a genuine
issue of material fact regarding her Title VII and ADEA claims, and Cracker Barrel is entitled to
summary judgment. Additionally, Cracker Barrel has introduced undisputed evidence that it
terminated Towery’s employment for fighting with another employee after having received a final
written warning for using the term “fag” in the workplace, in violation of Cracker Barrel policy.

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Accordingly, Cracker Barrel’s motion for summary judgment is granted, and this action is
dismissed with prejudice by judgment filed today.
SO ORDERED.
May 3, 2016.

_________________________________
SIDNEY A. FITZWATER
UNITED STATES DISTRICT JUDGE

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