Akene v. Goodwill Industries of Central Texas

Filing 32

ORDER GRANTING in part Defendant's 18 Motion to Exclude Evidence and for Summary Judgment. ORDER DISMISSING AS MOOT all other pending motions. Signed by Judge Sam Sparks. (lt)

IN THE UNITED STATES DISTRICT COUR
FOR THE WEST
TEXAS
!

DIVISION

FEMMY AKENE,

PM 2:20

Plaintiff,

-vs-

A-17-CV-00360-SS

GOODWILL INDUSTRIES OF
CENTRAL TEXAS,
Defendant.

ORDER
BE IT REMEMBERED on this day the Court reviewed the file in the above-styled cause,
and specifically Defendant Goodwill Industries of Central Texas, Inc. (Goodwill)'s Motion to

Exclude Evidence and Motion for Summary Judgment [#18], Plaintiff Femmy Akene's Response
[#30] in opposition, and Goodwill's Reply [#3 1] in support. Having considered the case file and

the applicable law, the Court enters the following opinion and orders.

Background
This case relates to Goodwill's termination of Akene' s employment from one of its stores
in Austin, Texas. Am. Compi. [#11] at ¶ 7. Akene was educated as an accountant in Nigeria,
and had over 20 years of accounting experience before starting at Goodwill on June 29, 2015.
Id. at ¶ 14. According to his complaint, Akene refused financial reporting directives from his

supervisors that he believed to be unlawful. Id. at ¶ 16. Thereafter, Akene received written

warnings, counseling, and a 3-day suspension before he was terminated by Goodwill in 2016.
Id. at ¶IJ 19-23. Goodwill contends it properly terminated Akene for failing to follow procedures

and directives, while Akene asserts he was wrongfully discharged.

Akene commenced this lawsuit on April 19, 2017. Goodwill filed a motion to dismiss
some of Akene's claims and another motion for a more definite statement for the other claims.
See

Mots. [##5, 6]. Akene did not respond to either motion. The Court granted Goodwill's

motions in part, directing Akene to file an amended complaint within 20 days to address the
deficiencies identified by Goodwill or risk dismissal of this lawsuit.

See

Order of Sep. 5, 2017

[#10]. Akene missed the Court's deadline, filing an amended complaint on October 2, 2017. See

Am. Compl. [#11]. The amended complaint includes claims for age discrimination under the

Age Discrimination in Employment Act (ADEA), race and national origin discrimination under
Title VII, wrongful termination in violation of public policy, and retaliation and harassment. Id.
at ¶J 33-49.

Goodwill filed a combined motion to exclude evidence and motion for summary

judgment on January 12, 2018.
response.

See

Mot. Summ. J. [#18]. Akene again failed to file a timely

The Court nevertheless granted Akene's untimely request for an extension to the

response deadline after Goodwill agreed to the extension.

See

Order of Feb. 8, 2018 [#26].

Akene filed a response [#27] to Goodwill's motion for summary judgment on the new deadline

of February

16, 2018, followed by an amended response [#28], a corrected amended response

[#29], and a seconded corrected amended response [#30] on February 20, 2018.1 Goodwill's

motions are now ripe for consideration.

Analysis
I.

Legal StandardSummary Judgment
Summary judgment shall be rendered when the pleadings, the discovery and disclosure

materials on file, and any affidavits show that there is no genuine dispute as to any material fact

The Court will consider Akene's seconded corrected amended response [#30] in resolving the pending
motions.

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and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a);
Celotex Corp.

v.

Catrett, 477 U.S. 317, 323-25 (1986); Washburn

v.

Harvey, 504 F.3d 505, 508

(5th Cir. 2007). A dispute regarding a material fact is "genuine" if the evidence is such that a

reasonable jury could return a verdict in favor of the nonmoving party. Anderson

v.

Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986). When ruling on a motion for summary judgment, the

court is required to view all inferences drawn from the factual record in the light most favorable
to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986);

Washburn, 504 F.3d at 508. Further, a court "may not make credibility determinations or weigh

the evidence" in ruling on a motion for summary judgment. Reeves

v.

Sanderson Plumbing

Prods., Inc., 530 U.S. 133, 150 (2000); Anderson, 477 U.S. at 254-55.
Once the moving party has made an initial showing that there is no evidence to support
the nonmoving party's case, the party opposing the motion must come forward with competent

summary judgment evidence of the existence of a genuine fact issue. Matsushita, 475 U.S. at
586. Mere conclusory allegations are not competent summary judgment evidence, and thus are

insufficient to defeat a motion for summary judgment. Turner
476 F.3d 337, 343 (5th Cir. 2007).

v.

Baylor Richardson Med. Ctr.,

Unsubstantiated assertions, improbable inferences, and

unsupported speculation are not competent summary judgment evidence.

The party

Id.

opposing summary judgment is required to identify specific evidence in the record and to
articulate the precise manner in which that evidence supports his claim. Adams
Indem. Co.

of Conn., 465 F.3d 156, 164 (5th

v.

Travelers

Cir. 2006). Rule 56 does not impose a duty on the

court to "sift through the record in search of evidence" to support the nonmovant's opposition to
the motion for summary judgment. Id.

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"Only disputes over facts that might affect the outcome of the suit under the governing
laws will properly preclude the entry of summary judgment."

Anderson, 477

U.s. at

248.

Disputed fact issues that are "irrelevant and unnecessary" will not be considered by a court in

ruling on a summary judgment motion. Id. If the nonmoving party fails to make a showing
sufficient to establish the existence of an element essential to its case and on which it will bear
the burden of proof at trial, summaryjudgment must be granted.

II.

Celotex,

477 U.S. at 322-23.

Application
As indicated above, Goodwill seeks to exclude undisclosed evidence and moves for

summary judgment on all claims. The Court will address Goodwill's motion for summary

judgment first, followed by Goodwill's motion to exclude.
A.

Motion for Summary Judgment
Akene's amended complaint includes claims for age discrimination under the ADEA,

race and national origin discrimination under Title VII, wrongful termination in violation of

public policy, and retaliation and harassment.

As explained below, the Court concludes

Goodwill is entitled summary judgment on all claims in this case.
1. Age

discrimination under the ADEA

Akene contends Goodwill violated the ADEA by terminating Akene's employment
because of his age. Am. Compi. [#11] at ¶IJ

33-37.

Goodwill argues it is entitled to summary

judgment because it has offered a legitimate, nondiscriminatory reason for terminating Akene,
and because Akene has not presented a prima facie case under ADEA. Mot. Summ. J.
8-9;

[#18]

at

Reply [#3 1] at 6.
To establish an age discrimination claim under the ADEA, a "plaintiff must show that (1)

he was discharged;

(2)

he was qualified for the position;

(3)

he was within the protected class at

the time of discharge; and (4) he was either i) replaced by someone outside the protected class,
ii) replaced by someone younger, or iii) otherwise discharged because of his age." Rachid v.

Jack In The Box, Inc., 376 F.3d 305, 309 (5th Cir. 2004) (internal quotations and citations
omitted). A plaintiff may demonstrate age discrimination with direct evidence or by an indirect

or inferential method of proof. Id. After an employee presents a prima facie case, the burden
shifts to the employer to provide a legitimate, nondiscriminatory reason for terminating

employment. Miller

v.

Raytheon Co., 716 F.3d 138, 144 (5th Cir. 2013).

"If the employer

satisfies this burden, the burden shifts back to the employee to prove either that the employer's

proffered reason was not

truebut was instead a pretext for age discriminationor that, even if

the employer's reason is true, he was terminated because of his age." Id.

Akene has failed to present a prima facie case of age discrimination under the ADEA.
The amended complaint includes conclusory allegations Akene was terminated because of his
age. Am. Compl. [#11] at ¶J 32-37. However, Akene's subjective beliefs that age played a role

in his termination caimot establish a prima facie case under the ADEA. See Vasquez v. Nueces
County, Tex., 551 F. App'x 91, 94 (5th Cir. 2013) ("However, we have held that the subjective

belief of a plaintiff is not sufficient to establish a prima facie case of discrimination under Title
VII, the ADEA, or the TCHRA."). Setting aside Akene's subjective beliefs, there is no evidence
Akene was replaced by someone outside the protected class, replaced by someone younger than
him, or otherwise discharged because of his age. Moreover, Akene has failed to present even

cursory factslike his age, for exampleto show he was within the protected class when he was
terminated. For these reasons, Akene has failed to present a prima facie case under the ADEA
and Goodwill is entitled to summary judgment on this claim. See Kim

v.

Hospira, Inc., 709 F.

App'x 287, 289 (5th Cir. 2018) (affirming summary judgment when employee failed to present
evidence to support a prima facie ADEA claim).
Even assuming Akene presented a prima facie case of age discrimination, Goodwill has

offered a legitimate, nondiscriminatory reason for Akene's termination. Goodwill has presented
evidence that Akene repeatedly violated its written policies, and Akene was disciplined on

multiple occasions for such violations. Mot. Summ. J. [#18] at 8-9 (citing Exs. 4, 5, 7); see also
Am. Compi. [#11] at ¶J 19-23 (documenting a series of disciplinary measures by Goodwill).

Accordingly, Goodwill has presented evidence to shift the burden back on Akene to prove that
either Goodwill's proffered reason was pretext for age discrimination or that he was terminated

because of his age. See Miller, 716 F.3d at 144.
Akene has not created a genuine issue of material fact on whether Goodwill's proffered
reason for his termination was pretextual. A plaintiff may show pretext either through evidence

of disparate treatment or by showing that the employer's proffered explanation is false or
unworthy of credence. Jackson

v.

Cal-W. Packaging Corp., 602 F.3d 374, 378-79 (5th Cir.

2010). However, such evidence must show "that age was the 'but for' cause of the challenged
adverse employment action." Reed

v.

Neopost USA, Inc., 701 F.3d 434, 440 (5th Cir. 2012).

Akene denies violating Goodwill's procedures, and also alleges another team leader under 40
was not written up. Resp. [#30] at 6-8.

These conclusory assertions, without more, are

insufficient for a reasonable jury to conclude Akene was terminated because of his age. See
Malcolm v. Vicksburg Warren Sch. Dist. Bd. of Trustees, 709 F. A'ppx 243, 249 (5th Cir. 2017)

(affirming summary judgment because of employee's failure to present competent summary

judgment evidence on the question of pretext).

Thus, Goodwill is entitled to summary

judgement on Akene's ADEA age discrimination claim.

2. Race and national origin discrimination under Title VII

Akene asserts Goodwill violated Title VII by discriminating against him based on race
and/or national origin by "subjecting him to disparate working conditions and denying him the
opportunity to work in an employment setting free of discrimination and disparate treatment."
Am. Compl. [#11] at ¶J 38-40. As with the ADEA claim above, Goodwill argues it is entitled to

summary judgment because it has offered a legitimate, nondiscriminatory reason for terminating
Akene. Mot. Summ. J. [#18] at 8-9. Goodwill also contends there is no evidence Akene was

treated any differently than other Goodwill employees. Reply [#31] at 8.

Under Title VII, it is unlawful for an employer "to discharge any individual, or otherwise
to discriminate against any individual with respect to his compensation, terms, conditions, or

privileges of employment, because of such individual's race, color, religion, sex, or national

origin." 42 U.S.C.A.

§

2000e-2(a)(1). A Title VII claimant can only prove disparate treatment

by presenting evidence that he was treated less favorably than others outside of his protected
class. Alkhawaldeh

v.

Dow Chem. Co., 851 F.3d 422, 427 (5th Cir. 2017), reh'g denied (Apr. 27,

2017).

Akene has failed to present a prima facie case of disparate treatment under Title VII. The
disparate treatment claim in this case is premised on Goodwill allegedly subjecting Akene to

disparate working conditions. However, Akene has no evidence to develop or substantiate the
"disparate working conditions" underlying this claim. More importantly, there is no evidence

other Goodwill employees outside of Akene's protected class were treated differently than
Akene with respect to the alleged disparate conditions. Without direct or circumstantial evidence

of disparate treatment, Akene's claim must fail. See Alkhawaldeh, 851 F.3d at 427 (affirming

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summary judgment for employer because employee could not "prove that he was treated less
favorably than others 'similarly situated' outside of his protected

class").2

3. Wrongful termination in violation of public policy

Akene's third claim is for wrongful termination in violation of public policy.

Am.

Compl. [#111 at ¶J 41-45. Specifically, Akene contends Goodwill improperly terminated his
employment for "refusing to commit an illegal act under Texas, federal or municipal law." Id. at

¶ 42. Goodwill requests summary judgment because the referenced laws were not violated and
Akene lacks expert testimony to support his claim. Mot. Summ. J. [#18] at 11-13.
In general, "employment for an indefinite term may be terminated at will and without

cause." Sabine Pilot Serv., Inc.

v.

Hauck, 687 S.W.2d 733, 734 (Tex. 1985) (citing East Line &

R.R.R. Co. v. Scott, 72 Tex. 70, 75 (1888)).

There is, however, a "narrow" public policy

exception that an employer may not discharge "an employee for the sole reason that the
employee refused to perform an illegal act." Id. A prima facie case of wrongful termination
under the public policy exception set forth in Sabine Pilot requires a plaintiff show (1) he was

required to commit an illegal act which carries criminal penalties; (2) he refused to engage in the
illegality; (3) he was discharged; (4) the sole reason for his discharge was his refusal to commit
an unlawful act. White

v.

FCI USA, Inc., 319 F.3d 672, 676 (5th Cir. 2003).

Goodwill is entitled to summary judgment on Akene's claim under Sabine Pilot for
several reasons.

First, the statutes underlying Akene' s claim as referenced in his amended

complaint either do not exist or are not applicable to the facts of this case. See Am. Compl.
[#11] at ¶ 42 (referencing "

3.35 1 and 22.35 1 of the Texas Business Organizations Code"); see

also Mot. Summ. J. [#18] at 8-9. Akene does not dispute this point, but instead attempts to

The Court need not consider whether Goodwill has offered a legitimate, nondiscriminatory for
tennination because Akene has failed to present a prima facie case to shift the burden back to Goodwill on this issue.
2

salvage this claim by citing new statutes for the first time in his responsive briefing. See Resp.
[#30] at 10 (referencing "Texas Bus. Code

"Texas Bus. Code

§

§

4.007 (a)(2)(B)," "Texas Bus. Code

§

4.008,"

22.354," and "Texas Bus. Code §22.353"). Any claim based on these

previously undisclosed statutes is untimely.

Second, Akene has not submitted evidence

Goodwill required him to commit unlawful acts, but instead relies on his own subjective
interpretation to prove his case. Akene's subjective interoperation cannot support this claim.
See White v.

FCI

USA, Inc., 319 F.3d 672, 677 (5th Cir. 2003) (affirming dismissal

of Sabine

Pilot claim premised on employee's subjective interpretation of employer's remarks rather the
employer's direction to commit unlawful acts).

Third, Akene has presented no substantive

evidence to refute Goodwill's alternative justification for this termination. See id. (affirming
dismissal of Sabine Pilot claim because employee failed to "provide any substantive evidence"
to refute employer's alternative rationale for termination). Finally, Akene has failed to allege or

submit evidence that his refusal to perform unlawful acts was the sole reason for his termination.
To the contrary, Akene's other claims in this case assert he was terminated for different reasons,

including age, national origin, and race.
4. Retaliation and harassment

under Title VII

Akene's final claim is for retaliation and harassment. Am. Compl. [#11] at ¶J 46-49. On
summary judgment, Goodwill argues Akene was not subjected to a hostile work environment or
retaliation. Mot. Summ. J. [#18] at 9-11. In response, Akene clarified his claim is for retaliation

under Title VII based on Goodwill's "fail[ure] to provide me the same training and resources that
the other Retail Team Leaders and Assistant Managers were receiving" after he refused to keep
false records. See Resp. [#30] at 8-9. Akene dropped his claims for hostile workplace and
harassment. See id. at 4.

To present a claim for Title VII retaliation, a plaintiff must show (1) he participated in an

activity protected by Title VII; (2) he received an adverse employment action; and (3) a causal
connection exists between the protected activity and the adverse action. Soledad v. US. Dept. of
Treasury, 304 F.3d 500, 507 (5th Cir. 2002). An employee has engaged in protected activity

under Title VII if he has (1) "opposed any practice made an unlawful employment practice by
this chapter," or (2) "made a charge, testified, assisted, or participated in an investigation,

proceeding, or hearing under this subchapter." 42 U.S.C.

§

2000e-3(a). The employee must

establish that "his or her protected activity was a but-for cause of the alleged adverse action by
the employer." Univ. of Tex. Sw. Med. Ctr.

v.

Nassar, 570 U.S. 338, 362 (2013).

Akene has failed to present a prima facie case of retaliation under Title VII. First, Akene
has not shown he participated in an activity protected by Title VII. As indicated above, Akene
alleges retaliation because of his refusal to keep false records. Akene, however, has failed to cite

any authority to support that refusing to keep false records is a protected activity under Title VII.
There is no association between refusing to keep false records and the types of activity intended
to for protection under Title VII.

Second, Akene has failed to present evidence of but-for

causation between his refusal to keep false records and his termination.
Aside from Akene failure to present a prima facie case for retaliation, Akene lacks
evidence from which a jury could conclude Goodwill's legitimate, nondiscriminatory reason for

termination is pretextual. See supra Section II.A. 1. For the above reasons, Goodwill is entitled
to summary judgment on this claim.

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B.

Motion to Exclude
Goodwill has also moved to exclude any evidence Akene may offer in response to its

motion for summary judgment because Akene has failed to file any disclosures as required by
Rule 26(a). Mot. Summ. J. [#18] at

3-4.

Per the Court's scheduling order, Akene was required to serve his designation of
witnesses, testifying experts, and proposed exhibits to Goodwill by November
Order of Oct. 11, 2017

[#14].

3,

2017. See

Akene's expert witnesses were required to submit written reports

by the same deadline, and discovery closed on December 29, 2017. Id.
As with most other deadlines in this case, Akene failed to file disclosures by the date set
in the Court's scheduling order. Akene acknowledges his failure to meet the deadlines, but

asserts such a failure is harmless "because Goodwill possesses all of the same evidence
possessed by the plaintiff at this point in the litigation and thus does not suffer any undue

prejudice or surprise by this omission." Resp.

[#30]

at

3.

The Court declines to consider the Goodwill's request to exclude Akene's evidence in

light of the summary judgment opinion above. However, the Court considers Akene's repeated

failure to comply with the Court's orders and deadlines as an alternative basis for dismissing this
case.

Conclusion
Accordingly,
IT IS ORDERED that Defendant Goodwill Industries of Central Texas, Inc.

(Goodwill)'s Motion to Exclude Evidence and Motion for Summary Judgment [#18] is
GRANTED in part as explained in this opinion; and

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IT IS FThALLY ORDERED that all other pending motions are DISMISSED as

moot.
'V

SIGNED this the

ay of February 2018.

SAM SPARKS
(I
SENIOR UNITED STXTES DISTRICT JUDGE

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