Collins-pearcy v. Mediterranean Shipping Co. Inc

698 F.Supp.2d 730

Ceceil L. COLLINS-PEARCY and Mark A. Pearcy, Plaintiffs,v.MEDITERRANEAN SHIPPING COMPANY (USA) INC., Defendant.

Civil Action No. H-08-2798.

United States District Court,

S.D. Texas,

Houston Division.

March 22, 2010.

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Debra V. Jennings, Attorney at Law, Houston, TX, for Plaintiffs.

Michael D. Mitchell, Flyn Lee Flesher, Ogletree Deakins et al., Houston, TX, for Defendant.

MEMORANDUM AND ORDER

NANCY F. ATLAS, District Judge.

This employment discrimination case comes before the Court on Defendant Mediterranean Shipping Company (USA), Inc.'s (“MSC's”) Motion for Summary Judgment [Doc. # 39] (“Motion”).¹ Plaintiffs Ceceil L. Collins-Pearcy (“Collins-Pearcy”) and Mark A. Pearcy (“Pearcy”) filed a Response [Doc. # 58], ² and MSC filed a Reply [Doc. # 71]. The Motion is fully briefed and ripe for determination.

Both Plaintiffs raise claims of a racially hostile work environment and discrimination based on race, as well as claims of national-origin discrimination, under Chapter 21 of the Texas Labor Code, § 21.001 et seq. , and 42 U.S.C. § 1981 (“ § 1981”). Collins-Pearcy also raises claims of interference and retaliation under the Family and Medical Leave Act of 1993 (“FMLA” or “the Act”), 29 U.S.C. § 2601 et seq., and discrimination based on gender and pregnancy under the Texas Labor Code and § 1981. Finally, both Plaintiffs assert claims of libel and fraud under Texas law. MSC moves for summary judgment on all claims.

After carefully considering the parties' submissions, all pertinent matters of record, and applicable legal authorities, the Court concludes that MSC's Motion should be granted in all respects. The Court concludes that Collins-Pearcy has failed to raise a genuine issue of material fact that she was an eligible employee under the FMLA. Collins-Pearcy's disparate impact claim fails because it was not exhausted, and Pearcy's disparate impact claim fails because he has not raised a genuine issue of material fact that there is a causal link between any specific, facially neutral employment policy and an actionable disparity based on one of his protected classes. Plaintiffs failed to exhaust their race-based hostile environment claims under the Texas Labor Code, and have not raised a fact issue that they were subjected to such an environment under their § 1981 claims. MSC is entitled to summary judgment on Plaintiffs' disparate treatment claims, based on all of their respective protected classes, because Plaintiffs have not produced evidence sufficient to establish a prima facie case of discrimination for any of those claims. Further, Plaintiffs have not raised a genuine issue of material fact that MSC's stated reasons for taking any adverse employment actions against them were pretextual or based on a mixed motive. Plaintiffs failed to exhaust their retaliation claims under the Texas Labor Code, and have not established a prima facie case of retaliation under § 1981. Finally, Plaintiffs have failed to produce evidence sufficient to raise a genuine issue of material fact to support their libel and fraud claims.

I. FACTUAL BACKGROUND

Defendant MSC is a worldwide shipping line engaged in international container transport. MSC hired Plaintiffs Ceceil Collins-Pearcy and Mark Pearcy, a married couple, to work in MSC's Houston office on June 5, 2006.³ Plaintiffs are Black Jamaicans who were authorized to work in the United States for one year at the time of their hire.⁴ Plaintiffs were authorized for employment under the Optional Practical Training program, which allows certain international students to work in the United States for approximately one year after they have completed their studies.⁵See 8 C.F.R. § 214.2(f)(10)(ii). Each Plaintiff has a Master's Degree in Business Administration from Nicholls State University. Collins-Pearcy was originally assigned to the Intermodal Department at MSC. She later worked in MSC's Equipment Department and Freight Cashier Department.⁶ Collins-Pearcy's ultimate supervisor throughout her employment at MSC was Jim Morrison, a Caucasian male, MSC's Assistant Vice President.⁷ Pearcy worked in MSC's Export Documentation, Import Customer Service, and Far East Import Departments during his employment at MSC.⁸ Pearcy had a different supervisor in each department.⁹ The ultimate decision-makers at MSC when it came to employment decisions for both Plaintiffs were Claudio Bozzo, MSC's President, and Paolo Magnani, MSC's Vice President, both male, Caucasian, Italians.¹⁰

Citing poor attendance and work performance, MSC states that on February 14, 2007, it decided not to sponsor Plaintiffs' work-visa applications, which if successful, would have provided Plaintiffs the legal status necessary to continue their employment at MSC.¹¹

On March 14, 2007, Collins-Pearcy began a maternity leave that ran to May 21, 2007.¹² Plaintiffs' employment with MSC was terminated on or about June 4, 2007. Plaintiffs subsequently filed the instant employment discrimination suit against MSC.

II. SUMMARY JUDGMENT STANDARD

Rule 56 of the Federal Rules of Civil Procedure mandates the entry of summary judgment, after adequate time for discovery and upon motion, 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 will bear the burden at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994) (en banc); see also Baton Rouge Oil and Chem. Workers Union v. ExxonMobil Corp., 289 F.3d 373, 375 (5th Cir.2002). Summary judgment “should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c); Celotex, 477 U.S. at 322-23, 106 S.Ct. 2548; Weaver v. CCA Indus., Inc., 529 F.3d 335, 339 (5th Cir.2008).

For summary judgment, the initial burden falls on the movant to identify areas essential to the non-movant's claim in which there is an “absence of a genuine issue of material fact.” Lincoln Gen. Ins. Co. v. Reyna, 401 F.3d 347, 349 (5th Cir.2005). The moving party, however, need not negate the elements of the non-movant's case. See Boudreaux v. Swift Transp. Co., 402 F.3d 536, 540 (5th Cir.2005). The moving party may meet its burden by pointing out “ ‘the absence of evidence supporting the nonmoving party's case.’ ” Duffy v. Leading Edge Prods., Inc., 44 F.3d 308, 312 (5th Cir.1995) (quoting Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 913 (5th Cir.1992)).

If the moving party meets its initial burden, the non-movant must go beyond the pleadings and designate specific facts showing that there is a genuine issue of material fact for trial. Littlefield v. Forney Indep. Sch. Dist., 268 F.3d 275, 282 (5th Cir.2001) (internal citation omitted). “An issue is material if its resolution could affect the outcome of the action. A dispute as to a material fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” DIRECTV Inc. v. Robson, 420 F.3d 532, 536 (5th Cir.2005) (internal citations omitted).

In deciding whether a genuine and material fact issue has been created, the court reviews the facts and inferences to be drawn from them in the light most favorable to the nonmoving party. Reaves Brokerage Co. v. Sunbelt Fruit & Vegetable Co., 336 F.3d 410, 412 (5th Cir.2003). A genuine issue of material fact exists when the evidence is such that a reasonable jury could return a verdict for the non-movant. Tamez v. Manthey, 589 F.3d 764, 769 (5th Cir.2009) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)).

The non-movant's burden is not met by mere reliance on the allegations or denials in the non-movant's pleadings. See Diamond Offshore Co. v. A & B Builders, Inc., 302 F.3d 531, 545 n. 13 (5th Cir.2002). Likewise, “conclusory allegations” or “unsubstantiated assertions” do not meet the non-movant's burden. Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 399 (5th Cir.2008). Instead, the nonmoving party must present specific facts which show “the existence of a genuine issue concerning every essential component of its case.” Am. Eagle Airlines, Inc. v. Air Line Pilots Ass'n, Int'l, 343 F.3d 401, 405 (5th Cir.2003) (citation and internal quotation marks omitted). In the absence of any proof, the court will not assume that the non-movant could or would prove the necessary facts. Little, 37 F.3d at 1075 (citing Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990)).

The Court may make no credibility determinations or weigh any evidence, and must disregard all evidence favorable to the moving party that the jury is not required to believe. See Chaney v. Dreyfus Service Corp., 595 F.3d 219, 229 (5th Cir.2010) (citing Reaves Brokerage Co., 336 F.3d at 412-413). The Court is not required to accept the nonmovant's conclusory allegations, speculation, and unsubstantiated assertions which are either entirely unsupported, or supported by a mere scintilla of evidence. Id. (citing Reaves Brokerage, 336 F.3d at 413). Affidavits cannot preclude summary judgment unless they contain competent and otherwise admissible evidence. See Fed. R. Civ. P. 56(e); Love v. Nat'l Med. Enters., 230 F.3d 765, 776 (5th Cir.2000); Hunter-Reed v. City of Houston, 244 F.Supp.2d 733, 745 (S.D.Tex.2003). A party's self-serving and unsupported statement in an affidavit will not defeat summary judgment where the evidence in the record is to the contrary. See In re Hinsley, 201 F.3d 638, 643 (5th Cir.2000).

Finally, “[w]hen evidence exists in the summary judgment record but the nonmovant fails even to refer to it in the response to the motion for...