Adame v. Refugio County
ORDER ADOPTING MEMORANDUM AND RECOMMENDATION granting 27 MOTION for Summary Judgment , 41 Memorandum and Recommendation. Action is DISMISSED WITH PREJUDICE. (Signed by Judge Nelva Gonzales Ramos) Parties notified.(mserpa, 2)
United States District Court
Southern District of Texas
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
June 09, 2017
David J. Bradley, Clerk
CIVIL ACTION NO. 2:16-CV-00139
ORDER ADOPTING MEMORANDUM AND RECOMMENDATION
Pending before the Court is Defendant’s Motion for Summary Judgment (D.E.
On May 5, 2017, United States Magistrate Judge Jason B. Libby issued a
Memorandum and Recommendation (M&R D.E. 41), recommending that Defendant’s
motion be granted and that Plaintiff’s action be dismissed. Plaintiff timely filed his
objections (D.E. 42) on May 18, 2017. Plaintiff presents five numbered objections, each
of which are addressed in the order presented.
First, Plaintiff objects to the M&R’s analysis of prejudicial statements as “stray
remarks.” In that regard, he cites two Fifth Circuit cases that support the Magistrate
Judge’s analysis of the prejudicial remarks, both of which were discussed in the M&R:
Auguster v. Vermilion Parish School Board, 249 F.3d 400, 404–05 (5th Cir. 2001) and
Russell v. McKinney Hospital Venture, 235 F.3d 219, 226 (5th Cir. 2000). Auguster
confirmed the continued viability of the stray remarks doctrine and Russell showed that
those remarks, combined with other substantial evidence, could overcome a defendant’s
evidence of a legitimate nondiscriminatory reason for the adverse employment action.
Together, the cases represent the two ends of the spectrum in which prejudicial
remarks are evaluated. Such remarks represent some direct evidence to support a prima
facie case and shift the burden to the defendant to show a legitimate nondiscriminatory
reason for a termination. But whether the remarks are sufficient to sustain a fact question
after the defendant submits its own evidence is a matter to be evaluated on a case-by-case
basis. Here, Plaintiff’s evidence of prejudicial remarks, even if found to be true, are not
enough to overcome Defendant’s substantial and uncontroverted evidence of excessive
absences from work. As applied, the M&R is correct in its analysis of the stray remarks.
Plaintiff takes his argument a step further and invites this Court to abandon the
stray remarks doctrine and hold that any remark, regardless of when made, is sufficient to
raise a fact question of racial animus notwithstanding evidence of a legitimate
nondiscriminatory basis for the action. The Court declines Plaintiff’s invitation to usurp
its authority in the face of binding precedent of the Fifth Circuit.
objection is OVERRULED.
Second, Plaintiff objects to the Magistrate Judge’s treatment of his statistical
evidence. The M&R details the analytical defects in the evidence, including a failure to
demonstrate which employees were Hispanic and which were not, the lack of a
demonstrated methodology for calculating the number of Hispanics and Non-Hispanics
hired from their respective pools of applicants, and the omission of higher-paid Hispanic
employees’ salaries when complaining that Hispanics on the whole received lower pay.
Plaintiff does not offer an explanation that eliminates these infirmities.
Instead, Plaintiff asks the Court to accept the evidence as part of indulging all
justifiable inferences in favor of the non-movant, citing Caboni v. General Motors Corp.,
278 F.3d 448, 451 (5th Cir. 2002). However,
The trial court may not enter a summary judgment which
rests on a chain of inferences from subsidiary facts not
conclusively established in the record. On a motion for
summary judgment neither we nor the trial courts are
permitted to weigh the evidence, pass upon credibility, or
“speculate as to ultimate findings of fact.” Fortner
Enterprises, Inc. v. United States Steel, 394 U.S. 495, 506, 89
S.Ct. 1252, 1260, 22 L.Ed.2d 495 (1969).
Pepper & Tanner, Inc. v. Shamrock Broad., Inc., 563 F.2d 391, 393 (9th Cir. 1977).
“Justifiable inferences” referenced in the Rule 56 standard of review requires solid
evidence from which to make those inferences. The Court is not empowered to infer that
statistical evidence that is demonstrably infirm would support the non-movant if
performed with the scientific or mathematical accuracy that type of evidence requires.
Plaintiff’s second objection is OVERRULED.
Third, while Plaintiff does not object to the M&R’s consideration of Rita
Trojcak’s affidavit at this time, he asks for the opportunity to take her deposition in the
interest of justice and fairness because she was not previously disclosed as a witness in
discovery. Pursuant to Federal Rule of Civil Procedure 26(a)(1)(A)(i), a party must
disclose a person with knowledge of facts likely to be discoverable to support that party’s
claims or defenses. The Court notes that Trojcak’s affidavit was offered only in reply to
Plaintiff’s summary judgment response, which advanced issues that had not been
D.E. 33. Thus it is questionable whether Defendant should have
anticipated the need for this witness as a subject of disclosure under Rule 26.
Regardless, the disclosure rule does not preclude the use of a witness offered
solely for purposes of impeachment. Rule 26(a)(1)(A)(i). Furthermore, as the M&R
discusses, noncompliance with discovery may be excused and the witness permitted to
testify under circumstances that are substantially justified or harmless. D.E. 41, p. 10 n.5
(citing Keller v. Coastal Bend Coll., 629 F. App’x 596, 598-599 (5th Cir. 2015)).
Plaintiff does not challenge this reasoning for considering Trojcak’s affidavit on
Moreover, Plaintiff has not informed the Court of any reason that a deposition of
Ms. Trojcak is necessary. According to the summary judgment rule:
When Facts Are Unavailable to the Nonmovant.
If a nonmovant shows by affidavit or declaration that,
for specified reasons, it cannot present facts essential
to justify its opposition, the court may:
(1) defer considering the motion or deny it;
(2) allow time to obtain affidavits
declarations or to take discovery; or
(3) issue any other appropriate order.
Fed. R. Civ. P. 56. Plaintiff has not supplied an affidavit, declaration, or specified reason
for taking discovery. Plaintiff’s third objection is OVERRULED.
Fourth and fifth, Plaintiff objects that the M&R does not reflect proper
consideration of evidence of pretext and the existence of fact questions to preclude
While Plaintiff assigns discriminatory motives to Defendant’s
investigation and employment actions, the uncontroverted facts are that Plaintiff
frequently did not appear for work when scheduled, did not seek approval of time off in
advance, and took excessive amounts of time off. Plaintiff’s argument that the true
motivation was racial discrimination is based only on stray remarks which are contrasted
with ample evidence of Defendant’s hiring of Hispanic employees. Plaintiff’s fourth and
fifth objections are OVERRULED.
Having reviewed the findings of fact, conclusions of law, and recommendations
set forth in the Magistrate Judge’s Memorandum and Recommendation, as well as
Plaintiff’s objections, and all other relevant documents in the record, and having made a
de novo disposition of the portions of the Magistrate Judge’s Memorandum and
OVERRULES Plaintiff’s objections and ADOPTS as its own the findings and
conclusions of the Magistrate Judge. Accordingly, Defendant’s motion for summary
judgment (D.E. 27) is GRANTED and this action is DISMISSED WITH
ORDERED this 9th day of June, 2017.
NELVA GONZALES RAMOS
UNITED STATES DISTRICT JUDGE
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