MILES v. ADECCO EMPLOYMENT SERVICES, INC., (N.D.Tex. 2002)

SIDNEY FITZWATER, District Judge

Plaintiff Kevin R. Miles ("Miles") sues defendant Adecco Employment Services, Inc. ("Adecco") alleging that Adecco is liable for discharging him from employment based on his African-American race. Miles, who is proceeding pro se, does not identify the statute on which he bases his claim, but he has attached to his complaint a copy of the discrimination charge he filed with the Equal Employment Opportunity Commission, and this charge is based on Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq. Adecco has also treated the suit as based on Title VII.

Adecco filed a motion for summary judgment on November 26, 2001. Miles' response to the motion was due no later than December 17, 2001, the Monday following the twentieth day after Adecco filed its motion. See N.D. Tex. Civ. R. 7.1(e) ("A response and brief to an opposed motion must be filed within 20 days from the date the motion is filed."). He has not responded to the motion, and it is now ripe for decision.

Because Adecco does not have the burden at trial concerning Miles' Title VII cause of action, it can meet its summary judgment obligation by pointing the court to the absence of evidence to support the claim. See Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). If Adecco does so, then Miles must go beyond his pleadings and designate specific facts showing that there is a genuine issue for trial. See id; Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (per curiam). Summary judgment is mandatory where the nonmoving parties fail to meet this burden. Little, 37 F.3d at 1076. Although Miles' failure to respond to Adecco's motion does not, of course, permit the court to enter a "default" summary judgment, the court is permitted to accept Adecco's evidence as undisputed. Tutton v. Garland Indep. Sch. Dist., 733 F. Supp. 1113, 1117 (N.D. Tex. 1990) (Fitzwater, J.). Moreover, his failure to respond means that he has not designated specific facts showing that there is a genuine issue for trial. "A summary judgment nonmovant who does not respond to the motion is relegated to her unsworn pleadings, which do not constitute summary judgment evidence." Bookman v. Shubzda, 945 F. Supp. 999, 1002 (N.D. Tex. 1996) (Fitzwater, J.) (citing Solo Serve Corp. v. Westowne Assocs., 929 F.2d 160, 165 (5th Cir. 1991)). The fact that Miles is litigating this case pro se does not alter this rule. As the court stated in Bookman:

There is a point at which even pro se litigants must become responsible for the prosecution of their own cases if their claims are to warrant the court's attention. It is not unjustifiably onerous to require pro se parties to respond to proper motions for summary judgment. All summary judgment nonmovants shoulder the same obligation. District courts can make appropriate allowances for pro se responses that may be somewhat less-artfully written than those of represented parties. This can be accomplished, however, without excusing them from the most basic requirement that they file a response.

Id. at 1005.

Adecco has pointed this court to the absence of evidence that it terminated Miles based on his race. See D. Br. at 5. It maintains that it did not terminate his employment. According to Adecco, it is in the business of supplying temporary employment services. Adecco assigned Miles to work at BlueCross BlueShield of Texas ("BCBS") in the mailroom. Miles applied to BCBS to work permanently as a van operator. BCBS offered Miles a job, but it was contingent on his passing a drug test. BCBS decided that Miles was not hireable (due to the confidentiality of the relevant records, Adecco does not know whether Miles failed to take, or failed, the drug test). On that basis, BCBS rescinded its offer of permanent employment. BCBS also told Adecco that Miles could not return to his temporary assignment in the BCBS mailroom. Adecco did not participate in the decision to terminate Miles from the mailroom or to rescind the offer of permanent employment.

Because Miles has not responded to Adecco's motion, he has failed to present evidence that would permit a reasonable trier of fact to find in his favor. Adecco is therefore entitled to summary judgment dismissing Miles' lawsuit against it.

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The court grants Adecco's November 26, 2001 motion for summary judgment and dismisses this action by judgment filed today.

SO ORDERED.