Washington v. Gulf States Toyota, Inc.

Filing 30

MEMORANDUM OPINION AND ORDER granting 26 MOTION for Partial Summary Judgment and Brief in Support.(Signed by Judge Kenneth M. Hoyt) Parties notified.(chorace)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
NELSON WASHINGTON,
Plaintiff,
vs.
GULF STATES TOYOTA, INC.,
Defendant.

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CIVIL ACTION NO. 4:14-CV-2511

MEMORANDUM OPINION AND ORDER

I.

INTRODUCTION
Pending before the Court is the defendant’s, Gulf States Toyota, Inc. (the “defendant”),

motion for partial summary judgment and brief in support (Dkt. No. 26). The plaintiff, Nelson
Washington (the “plaintiff”), has filed a response in opposition to the motion (Dkt. No. 27) and
the defendant has filed a reply (Dkt. No. 28). After having carefully considered the motion,
response, reply, the record and the applicable law, the Court determines that the defendant’s
motion for partial summary judgment should be GRANTED.
II.

FACTUAL BACKGROUND
The plaintiff, an African-American male, began working as an Operations Team Leader

for the defendant on or about March 18, 2013 at its Spring, Texas location.

During his

employment with the defendant, the plaintiff was responsible for managing installation
operations and overseeing associates in the defendant’s Vehicle Processing Center (“VPC”). On
November 21, 2013, the plaintiff was terminated and escorted off the defendant’s premises. On
December 17, 2013, he filed a Charge of Discrimination with the Texas Workforce Commission,

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Civil Rights Division (“EEOC”), alleging claims against the defendant for sex discrimination
and retaliation in violation of Title VII of the Civil Rights Act of 1964, as amended (“Title VII”).
On May 30, 2014, the EEOC issued a Dismissal and Notice of Rights Letter to the
plaintiff. (Id., Ex. A-2). On September 2, 2014, the plaintiff filed the instant action against the
defendant alleging claims of race discrimination and retaliation in violation of Title VII as well
as a claim for violation of 42 U.S.C. § 1981. Subsequently, on September 16, 2014, the plaintiff
amended his complaint to include a Title VII sex discrimination claim. On December 16, 2014,
the plaintiff sought leave from this Court to amend his complaint to include two additional
claims, alleging violations of the Fair Credit Reporting Act against the defendant relative to his
employment application. On December 22, 2014, the Court entered an Order granting the
plaintiff’s motion for leave to file his Second Amended Complaint. (See Dkt. No. 19).
The defendant now moves for a partial summary judgment on the plaintiff’s claim of race
discrimination in violation of Title VII.
III.

SUMMARY JUDGMENT STANDARD
Rule 56 of the Federal Rules of Civil Procedure authorizes summary judgment against a

party who fails to make a sufficient showing of the existence of an element essential to the
party’s case and on which that party bears the burden at trial. See Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986); Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc).
The movant bears the initial burden of “informing the district court of the basis for its motion”
and identifying those portions of the record “which it believes demonstrate the absence of a
genuine issue of material fact.” Celotex, 477 U.S. at 323; see also Martinez v. Schlumber, Ltd.,
338 F.3d 407, 411 (5th Cir. 2003). Summary judgment is appropriate where “the pleadings, the
discovery and disclosure materials on file, and any affidavits show that there is no genuine issue

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as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(c).
If the movant meets its burden, the burden then shifts to the nonmovant to “go beyond the
pleadings and designate specific facts showing that there is a genuine issue for trial.” Stults v.
Conoco, Inc., 76 F.3d 651, 656 (5th Cir. 1996) (citing Tubacex, Inc. v. M/V Risan, 45 F.3d 951,
954 (5th Cir. 1995); Little, 37 F.3d at 1075). “To meet this burden, the nonmovant must
‘identify specific evidence in the record and articulate the ‘precise manner’ in which that
evidence support[s] [its] claim[s].’” Stults, 76 F.3d at 656 (citing Forsyth v. Barr, 19 F.3d 1527,
1537 (5th Cir.), cert. denied, 513 U.S. 871, 115 S. Ct. 195, 130 L. Ed.2d 127 (1994)). It may not
satisfy its burden “with some metaphysical doubt as to the material facts, by conclusory
allegations, by unsubstantiated assertions, or by only a scintilla of evidence.” Little, 37 F.3d at
1075 (internal quotation marks and citations omitted). Instead, it “must set forth specific facts
showing the existence of a ‘genuine’ issue concerning every essential component of its case.”
Am. Eagle Airlines, Inc. v. Air Line Pilots Ass’n, Intern., 343 F.3d 401, 405 (5th Cir. 2003)
(citing Morris v. Covan World Wide Moving, Inc., 144 F.3d 377, 380 (5th Cir. 1998)).
“A fact is material only if its resolution would affect the outcome of the action, . . . and
an issue is genuine only ‘if the evidence is sufficient for a reasonable jury to return a verdict for
the [nonmovant].’” Wiley v. State Farm Fire and Cas. Co., 585 F.3d 206, 210 (5th Cir. 2009)
(internal citations omitted). When determining whether a genuine issue of material fact has been
established, a reviewing court is required to construe “all facts and inferences . . . in the light
most favorable to the [nonmovant].” Boudreaux v. Swift Transp. Co., Inc., 402 F.3d 536,
540 (5th Cir. 2005) (citing Armstrong v. Am. Home Shield Corp., 333 F.3d 566, 568 (5th Cir.
2003)). Likewise, all “factual controversies [are to be resolved] in favor of the [nonmovant], but

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only where there is an actual controversy, that is, when both parties have submitted evidence of
contradictory facts.” Boudreaux, 402 F.3d at 540 (citing Little, 37 F.3d at 1075 (emphasis
omitted)). Nonetheless, a reviewing court is not permitted to “weigh the evidence or evaluate the
credibility of witnesses.” Boudreaux, 402 F.3d at 540 (quoting Morris, 144 F.3d at 380). Thus,
“[t]he appropriate inquiry [on summary judgment] is ‘whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is so one-sided that one party must
prevail as a matter of law.’” Septimus v. Univ. of Houston, 399 F.3d 601, 609 (5th Cir. 2005)
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251 – 52 (1986)).
IV.

ANALYSIS AND DISCUSSION
The defendant moves for a partial summary judgment on the plaintiff’s race

discrimination claim in violation of Title VII, arguing that the plaintiff has failed to exhaust his
administrative remedies with respect to that claim. Specifically, the defendant contends that
although the plaintiff filed a charge of discrimination with the EEOC, he did not indicate race
discrimination as a basis for his complaint nor did he reference any facts such that an EEOC
investigation into race discrimination could have reasonably been expected to grow out of his
initial charge of discrimination. The plaintiff, in contrast, maintains that he included facts
relevant to race discrimination in his intake questionnaire and thus, an EEOC investigation into
his claims of race discrimination could have reasonably been expected to grow out of his initial
charge.
It is well settled that “[e]mployment discrimination plaintiffs must exhaust administrative
remedies before pursuing claims in federal court. Exhaustion occurs when the plaintiff files a
timely charge with the EEOC and receives a statutory notice of right to sue.” Taylor v. Books A
Million, Inc., 296 F.3d 376, 378 - 79 (5th Cir. 2002) (citing Dao v. Auchan Hypermarket, 96 F.3d

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787, 789 (5th Cir. 1996)). “Although [the] filing of an EEOC charge is not a jurisdictional
prerequisite, it ‘is a precondition to filing suit in district court.’” Taylor, 296 F.3d at 379 (citing
Dao, 96 F.3d at 789). The purpose of this requirement is two-fold: (1) it affords “the EEOC and
the employer an opportunity to settle the dispute through conciliation”; and (2) it gives the
employer some notice “as to the conduct about which the employee is aggrieved.” Hayes v.
MBNA Tech., Inc., No. Civ. A. 3:03-CV1766-D, 2004 WL 1283965, at *3 (N.D. Tex. June 9,
2004) (citing Alexander v. Gardner-Denver Co., 415 U.S. 36, 44, 94 S. Ct. 1011, 39 L. Ed.2d
147 (1974); Sanchez v. Standard Brands, Inc., 431 F.2d 455, 466 (5th Cir. 1970)). The resulting
lawsuit that follows such charges “is limited to the ‘scope’ of the EEOC investigation [that] can
reasonably be expected to grow out of the charge of discrimination.” Young v. City of Houston,
Tex., 906 F.2d 177, 179 (5th Cir. 1990) (quoting Sanchez, 431 F.2d at 466)). Thus, a civil action
brought pursuant to Title VII “may be based, not only upon the specific complaints made by the
employee’s initial EEOC charge, but also upon any kind of discrimination like or related to the
charge’s allegations, limited only by the scope of the EEOC investigation that could reasonably
be expected to grow out of the initial charges of discrimination.” Fine v. GAF Chem. Corp., 995
F.2d 576, 578 (5th Cir. 1993) (quoting Fellows v. Universal Rests., Inc., 701 F.2d 447, 451 (5th
Cir. 1983)); see also Sanchez, 431 F.2d at 466.
The Fifth Circuit has described the scope of review as follows: “We engage in factintensive analysis of the statement given by the plaintiff in the administrative charge, and look
slightly beyond its four corners, to its substance rather than its label.” Pacheco v. Mineta, 448
F.3d 783, 789 (5th Cir. 2006) (internal citations omitted). “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.” Id. at 792 (citing Sanchez, 431 F.2d at 463 –

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65). Rather, “the crucial element of a charge of discrimination is the factual statement contained
therein.” Manning v. Chevron Chem. Co., L.L.C., 332 F.3d 874, 879 (5th Cir. 2003) (quoting
Sanchez, 431 F.2d at 462).
In this case, the plaintiff makes no reference to race in his Charge of Discrimination filed
with the EEOC. On his charge form, in the section labeled, “DISCRIMINATION BASED ON
(Check appropriate box(es).),” the plaintiff only checked the boxes for “Retaliation” and “Sex,”
and left the box for “Race” blank. In “THE PARTICULARS” section of his charge, he asserted
the following:
I.

I was hired by Gulf States Toyota in March, 2013. I was employed as a
Operations Team Leader. About 5- 6 weeks after I was hired, I
complained to my Manager (Ayanna Betts) and the HR Manager
(Kendance Culbreth) that a female co-worker, Myrisha Thomas, was
engaging in inappropriate behavior towards me. No action was taken to
investigate my concerns and Ms. Thomas retaliated against me. On
November 6, 2013, I questioned Ms. Thomas regarding her failure to
perform her job duties. During this conversation Ms. Thomas was rude
and insubordinate and refused to leave the floor was [sic] instructed. This
incident was reported to Ayanna Betts. We all met to discuss the incident.
Later, Ms. Betts spoke with Ms. Thomas alone. I was instructed to write
up the incident with a recommendation to terminate. The next day, Gary
Blacklock, HR Rep. met with Myrisha Thomas. After the meeting I was
told that she had accused me of making an inappropriate remark to her,
hitting in [sic] the face with her check and putting my finger in her face. I
was suspended pending investigation and on November 21, 2013, I was
terminated.

II.

My supervisor and Human Resources were aware of the problems I was
having with Myrisha Thomas. However, my complaints about her were
not taken seriously. My Manager’s response was that she felt Ms. Thomas
“had a little crush” on me.

III.

I believe that I have been discriminated against because of my sex, male
and retaliated against, in violation of Title VII of the Civil Rights Act of
1964, as amended.

(Dkt. No. 26, Ex. A-1.) (emphasis added).

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Indeed, the plaintiff does not allege race as a basis for discrimination in his charge nor
does he assert any facts that would raise an inference that he is complaining of racial
discrimination against his employer. In fact, the plaintiff does not even mention his race or the
race of any other individual specifically identified in his charge.

Moreover, based on the

plaintiff’s own admissions set forth in “THE PARTICULARS” section, his allegations of
discrimination are premised on his belief “that [he] ha[s] been discriminated against because of
[his] sex, male . . . and retaliated against, in violation of Title VII of the Civil Rights Act of 1964,
as amended.” (Id., Ex. A-1.) Therefore, the plaintiff’s claim of race discrimination is separate
and distinct from his claims of sex discrimination and retaliation raised in his Charge of
Discrimination filed with the EEOC.
Notwithstanding the aforementioned, the plaintiff contends that the facts pertaining to his
claims of racial discrimination asserted in his intake questionnaire should be considered as part
of his initial Charge of Discrimination. As support for his position, the plaintiff cites to Federal
Express Corp. v. Holowecki, 552 U.S. 389, 405, 128 S. Ct. 1147, 170 L. Ed.2d 10 (2008). This
Court determines, however, that the plaintiff’s reliance on Federal Express1 is misplaced for
various reasons. First, Federal Express is factually distinguishable from the instant case in that it
involved a claim arising under the Age Discrimination in Employment Act of 1967 (“ADEA”),
which unlike the Title VII claim presented here, has no verification requirement. 552 U.S. 389,
405, 128 S. Ct. 1147, 170 L. Ed.2d 10 (2008). Second, the Supreme Court, in Federal Express,
explicitly cautioned that the EEOC’s enforcement mechanisms pertaining to Title VII “differ in
some respects” from those relating to the ADEA. Federal Express, 552 U.S. at 393, 128 S. Ct. at
1153. It also advised that “[w]hile there may be areas of common definition, employees and

1

It is also important to note that the plaintiff’s intake questionnaire in Federal Express included a sworn, six-page
affidavit detailing the plaintiff’s claims.

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their counsel must be careful not to apply rules applicable under one statute to a different statute
without careful and critical examination.” Id. One of the most significant differences, although
not specifically stated by the Court, is that Title VII requires verification.

Evenson v.

Sprint/United Mgmt. Co., Civil Action No. 3:08–CV–0759-D, 2008 WL 4107524, at *6 (N.D.
Tex. Aug. 21, 2008) (reasoning that the ADEA has no provision parallel to its Title VII
counterpart, mandating that a Title VII charge be verified); see also 29 C.F.R. § 1601.9
(requiring Title VII charges to be in writing, signed and verified). The Federal Express Court
further reasoned that a completed intake questionnaire that meets the EEOC’s minimum
regulatory prerequisites for a charge will not constitute a charge in every instance. Federal
Express, 552 U.S. at 397, 128 S. Ct. at 1155. (emphasis added). Furthermore, the Fifth Circuit
has recognized that in the absence of evidence that a defendant has received notice of the
allegations contained in a plaintiff’s intake questionnaire, an intake questionnaire “cannot
substitute for a proper charge.” Harris v. Honda, No. 05-11380, 2006 WL 3627671, *3 (5th Cir.
Dec. 12, 2006).
It is undisputed that on or about November 21, 2013, the plaintiff completed an unsworn,
intake questionnaire purportedly alleging claims of race discrimination.2 Approximately one
month later, on December 17, 2013, he filed a sworn Charge of Discrimination with the EEOC, a
copy of which was served on the defendant as notice of his formal charge of discrimination. The
plaintiff has failed to present any evidence that the defendant ever received actual notice of the
contents of his intake questionnaire or of his intent to pursue a race discrimination claim against

2

Even if the plaintiff’s intake questionnaire were to be considered along with his initial charge of discrimination,
this Court is of the opinion that it does not contain sufficient facts such that an EEOC investigation into the
plaintiff’s alleged race discrimination claim could have reasonably been expected to grow out of the allegations
contained therein. Specifically, the plaintiff makes no mention of any racially motivated instances, does not check
the box next to “race” as a basis for discrimination, and merely provides the demographical information for the
individuals mentioned in response to a question expressly requesting such information.

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it based upon his November 2013 interview. Therefore, the plaintiff’s intake questionnaire
cannot substitute for a properly verified charge and the plaintiff’s failure to exhaust his
administrative remedies with respect to his race discrimination claim precludes him from
maintaining such a claim in the instant suit.
V.

CONCLUSION
Based on the foregoing analysis and discussion, the defendant is entitled to a judgment as

a matter of law on the plaintiff’s race discrimination claim. Accordingly, its motion for partial
summary judgment is GRANTED.
It is so ORDERED.
SIGNED on this 16th day of June, 2015.

___________________________________
Kenneth M. Hoyt
United States District Judge

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