Teemac v. Frito-Lay, Inc.

HANDY TEEMAC, Plaintiff, v. FRITO-LAY, INC. and PEPSICO, INC., Defendants.

No. 3:14-CV-2908-G-BF

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION

June 29, 2015

FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

Defendants Frito-Lay, Inc. and PepsiCo, Inc. have filed a motion for summary judgment in this wrongful termination lawsuit. For the following reasons, the District Court should GRANT Defendants' motion.

I. Background

Plaintiff Handy Teemac worked for Defendant Frito-Lay, Inc. ("Frito-Lay") as a "sanitor" performing sanitation and janitorial duties at a manufacturing plant in Irving, Texas on a part-time basis two nights a week from July 21, 2011 to June 26, 2012. See Def. MSJ App. (Doc. 27) at 22, 25. On May 19, 2012, Plaintiff was injured at work when equipment he was using broke and sprayed chemicals in his face. Id. at 38. Although a doctor examined Plaintiff and released him to return to work without restrictions on his next scheduled work day, Plaintiff believed he needed more time to recover. Id. at 42-45 & 98, 101. Accordingly, Plaintiff called Frito-Lay's attendance call-in line and reported that he would be taking two weeks off work. Id. at 52-53; see also Pl.'s MSJ Resp. App. (Doc. 31), Ex. C. By June 12 or 13, 2012, Plaintiff felt he could return to his job and calledhis supervisor to find out when he should next report to work. Id. at 62, 63. The supervisor advised Plaintiff that Frito-Lay believed he had quit and directed him to call the human resources department ("HR") to determine his employment status. Id. at 62. Plaintiff never contacted HR, nor did he return to work. Id. at 67. Frito-Lay later sent Plaintiff a letter which stated that his employment had been terminated effective June 26, 2012 for failing to meet the company's attendance standards. Id. at 89; see also Pl.'s MSJ Resp. App., Ex. D.

Plaintiff initially filed this pro se lawsuit against Frito-Lay in state court alleging that he was wrongfully terminated while he was recovering from a workplace injury.¹ See Rem. Not. (Doc. 1), Ex. E. Frito-Lay removed the case to federal court when Plaintiff filed an amended petition which asserted a new claim under the Family Medical Leave Act, 29 U.S.C. § 2601, et seq. ("FMLA"). See id., Ex. J. By his live pleading, Plaintiff asserts five causes of action against Frito-Lay and its parent company PepsiCo, Inc. ("PepsiCo") arising out of his termination: (1) breach of implied contract; (2) breach of the covenant of good faith and fair dealing; (3) FMLA violations; (4) intentional infliction of emotional distress; and (5) negligent infliction of emotional distress. Pl. Am. Compl. (Doc. 12) at 11-13. Defendants now move for summary judgment as to all of Plaintiff's claims and causes of action. The issues have been fully briefed, and the motion is ripe for determination.

II. Legal Standards

Summary judgment is proper when "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a). A party seekingsummary judgment bears the initial burden of showing the absence of a genuine issue for trial. See Duffy v. Leading Edge Prods., Inc., 44 F.3d 308, 312 (5th Cir. 1995). The movant's burden can be satisfied by showing the court that there is an absence of evidence to support the nonmoving party's case on which that party would have the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the movant meets its initial burden, the non-movant must show that summary judgment is not proper. See Duckett v. City of Cedar Park, 950 F.2d 272, 276 (5th Cir. 1992). The parties may satisfy their respective burdens by tendering depositions, affidavits and other competent evidence. See Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th Cir. 1992). All evidence must be viewed in the light most favorable to the party opposing the summary judgment motion. See Rosado v. Deters, 5 F.3d 119, 123 (5th Cir. 1993). However, while courts liberally construe the pleadings of pro se litigants, courts are not obligated under Rule 56 to search the record in order to find evidence supporting a party's opposition to a summary judgment motion. See Franklin v. BAC Home Loans Servicing, L.P., No. 3:10-CV-1174-M (BH), 2012 WL 2679496, at *3 (N.D. Tex. June 6, 2012) (citing cases).

III. Analysis

A. Preliminary Matters

As a preliminary matter, Defendants object and move to strike certain evidence submitted by Plaintiff in support of his summary judgment response, including excerpts from Plaintiff's deposition, Damita Teema's affidavit, and documents attached to Plaintiff's appendix filed in support of his summary judgment response. See Def. Mot. Strike (Doc. 32). Defendants contend that Plaintiff fails to specifically cite to any of this evidence in his response and that many of the affidavit statements are inadmissible hearsay, not based on personal knowledge, or improperconclusions. Id. at 2-3. Defendants further object to and move to strike two sur-reply briefs filed by Plaintiff: (1) his "Response to Defendants' Reply Brief to Plaintiff's Opposition Defendants' Motion for Summary Judgment," see Doc. 35; and (2) his "Response to Defendant's Reply to Plaintiff's Objection to Defenses' Motion to Strike Plaintiff's Objection Evidence," see Doc. 37. Defendants contend that Plaintiff's sur-replies are procedurally improper and unnecessary. See Def. Mot. Strike (Doc. 39). The court has reviewed the challenged evidence and sur-replies and determines that, even when they are considered, the evidence and arguments presented do not alter the court's findings and conclusions with respect to the pending summary judgment motion. Accordingly, Defendants' objections are overruled as moot, and the motions to strike (Doc. 32 & 39) are DENIED. See Jones v. United Parcel Serv., Inc., No. 3:06-CV-1535-L, 2008 WL 2627675, at *6 (N.D. Tex. June 30, 2008), aff'd, 307 F. App'x 864 (5th Cir. 2009) (denying as moot an objection to summary judgment evidence where sustaining the objection would not change the outcome).

B. Breach of Implied Contract

Plaintiff initially contends that Defendants led him to believe that his employment could be terminated only for "good cause," and Defendants breached an implied contract when they fired him for taking time off work after his injury. Pl.'s Compl. at 3-4. By their motion, Defendants argue that they are entitled to summary judgment on Plaintiff's claim for breach of implied contract because there is no evidence that they modified Plaintiff's at-will employment status or that the parties agreed that Plaintiff could be terminated only for cause. Def. Br. (Doc. 26) at 5-8.

Texas law provides that all employment contracts are "at-will" unless the parties expressly agree otherwise. Montgomery Cnty. Hosp. Dist. v. Brown, 965 S.W.2d 501, 502 (Tex. 1998); see also Sawyer v. E.I DuPont De Nemours & Co.,689 F.3d 463, 467 (5th Cir. 2012). An at-willemployee may be discharged for "good cause, bad cause, or no cause at all." Brown, 965 S.W.2d at 502. To overcome the at-will presumption, "the employer must unequivocally indicate a definite intent to be bound not to terminate the employee except under clearly specified circumstances." Id. General promises or assurances that an employee will not be discharged if he performs satisfactorily or that the employee will only be terminated for "good cause" are not sufficient to modify the at-will nature of an employment relationship. See id.

Plaintiff concedes that he was employed on an at-will basis. Def. MSJ App., Ex. A at 21. At his deposition, he testified that he understood, when he was hired, that his employment was not for a definite period, that he could quit at anytime for any reason, and that Frito-Lay could similarly fire him at anytime for any reason. Id. at 20-22. He further testified that no one at Frito-Lay ever promised him that he could not be fired or could be fired only for certain reasons. Id. at 33-34. Notwithstanding this evidence, Plaintiff argues that an implied contract modifying his at-will status existed because Frito-Lay representatives "made him believe" that his employment could only be terminated for cause, which included theft, drug abuse, and sexual harassment. Pl.'s Resp. (Doc. 29) at 3-4. Plaintiff does not identify any specific statement by any particular Frito-Lay representative that contributed to his alleged understanding of his employment status. Instead, he asserts that unidentified Frito-Lay representatives told him "Frito-Lay is a place you can grow. . . . You can grow at this plant as long as you do your job good." Def. MSJ App. at 35. Such vague assertions are legally insufficient to modify the at-will nature of an employment relationship. Allamon v. Acuity Specialty Prods., Inc., 877 F. Supp. 2d 498, 518 (E.D. Tex. 2012), aff'd, 534 F. App'x 248 (5th Cir. 2013) (oral assurances that employee would have her job "as long as she was able and her performance was satisfactory" did not change employee's at-will employment status). Plaintiffpoints to no other evidence that Frito-Lay modified his at-will employment status or agreed that he could be terminated only for cause. Plaintiff has thus failed to raise a genuine fact issue for trial on his claim for breach of implied contract. Defendants are entitled to summary judgment on this claim.

C. Breach of Covenant of Good Faith and Fair Dealing

Plaintiff also asserts a claim for "breach of covenant of good faith and fair dealings" on grounds that Frito-Lay failed to follow its own policy with regard to absences. Pl.'s Amend. Compl. at 5. More specifically, Plaintiff contends that Frito-Lay's attendance policy does not count "job related injuries" as absences and that Frito-Lay must issue a written warning to an employee regarding an attendance issue before the employee can be fired for his absences. Id. Plaintiff asserts that Frito-Lay breached its own...