Sam A. Lindsay, United States District Judge
Before the court are Defendant's Motion for Summary Judgment, filed August 3, 1999, and Motion to Strike Plaintiff's Summary Judgment Evidence, filed October 8, 1999. After careful consideration of the motions, responses, briefs, evidence submitted by the parties, and applicable law, the court finds that no genuine issue of material fact exists regarding Plaintiff's claims. Accordingly, the court grants summary judgment for Defendant. The court denies as moot the motion to strike.
I. Factual and Procedural Background
The facts contained herein are either undisputed or, where they are disputed, presented in the light most favorable to Plaintiff as the nonmovant.
Plaintiff is a 47 year old Jewish man. From 1984 to 1994, he was employed as a regional sales manager by National Truckers Service, Inc. ("NTS"), which provided credit card and financial services for trucking companies. After leaving NTS in 1994, Plaintiff worked for EDS Fleet Services, Inc. ("EDS"), a competitor of NTS, first as Director of National Accounts, then as Vice President of Outside Sales, and finally as Vice President of Sales. Integrated Payment Systems, Inc. ("IPS"), a subsidiary of Defendant First Data Corporation ("FDC"), acquired NTS in February 1996 and EDS in August 1996. The operations of NTS and EDS were combined into NTS Fleet Services, Inc. ("NTS Fleet"). The combined workforces were consolidated, resulting in a reduction-in-force. As part of that reduction-in-force, Plaintiff was terminated from his position. without any advance warning, disciplinary action, or counseling, despite his very successful record. He requested another sales job but was refused. He was escorted from the building by an armed guard.
Plaintiff contends that the termination was impermissibly based on his age, his religion, and his disability (a back injury resulting from a car accident). Plaintiff further alleges that Defendant refused to make reasonable accommodation for his disability by providing a special chair and allowing Plaintiff to fly to meetings rather than drive long distances. Finally, Plaintiff claims that Defendant created a hostile work environment with respect to Plaintiff's religion. The alleged hostile work environment consisted of derogatory references to Jews and a tremendously offensive anti-Semitic "joke," as well as the scheduling of key meetings during Jewish holidays while denying Plaintiff's request for reasonable accommodations.
Plaintiff discusses a second disability — a degenerative eye disease — in his response brief. The Complaint, however, only pled the back injury. The second disability is therefore riot before the court and irrelevant to its analysis.
Plaintiff does not allege that the termination and the failure to provide reasonable accommodations were linked, that is, that he was terminated because unable to perform adequately without the accommodations. Failure to provide such accommodations, however, is separately' actionable regardless of whether the disabled individual is terminated. 42 U.S.C. § 121 12(b)(5)(A).
Plaintiff filed this action against FDC on January 30, 1998. He asserts claims under: 1) the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., for discriminatory discharge based on, and failure to make reasonable accommodations for, his disability arising from the back injury; 2) Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., and 42 U.S.C. § 1981 for discriminatory discharge based on, and creation of a hostile work environment with respect to, his religion; and 3) the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., for discriminatory discharge based on age. Plaintiff apparently also filed suit against FDC and NTS Fleet in state court, This case was mediated successfully in 1998, but Plaintiff subsequently decided to revoke the agreement. The court, in an order filed April 9, 1999, denied Defendant's motion to enforce the settlement agreement, as it did not comply with strict waiver requirements for suits involving a claim under ADEA.
Defendant asserts that religious discrimination is not subject to 42 U.S.C. § 1981, citing Saint Francis College v. Al-Khazrafi, 481 U.S. 604, 613 (1987). That is a strained reading of the case, which held that the plaintiff could assert a cause of action under § 1981 if based on discrimination against him as "an Arab, rather than solely on the place or nation of his origin, or his religion." Id. It is also contradicted by another case decided the same day. See Shaare Tefila Congregation v. Cobb, 481 U.S. 615, 617-18 (1987) ("As Saint Francis makes clear, the question before us is not whether Jews are considered to be a separate race by today's standards, but whether, at the time § 1982 was adopted, Jews constituted a group of people that Congress intended to protect. It is evident from the legislative history of the section reviewed in Saint Francis College [§ 1981], a review that we need not repeat here, that Jews and Arabs were among the peoples then considered to be distinct races and hence within the protection of the statute. Jews are not foreclosed from stating a cause of action against other members of what today is considered to be part of the Caucasian race."). Defendant's contention is clearly erroneous. Religious discrimination against a Catholic does not implicate § 1981; religious discrimination against a Jew does.
In his Supplemental Response, filed June 16, 2000, Plaintiff requested that (if the court determined that Defendant was not subject to suit on these claims) the court remove the state court case and consolidate it with the present case. Removal, of course, is initiated by a defendant, not the plaintiff and certainly not the court.
II. Summary Judgment Standard
Summary judgment shall be rendered when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323-25 (1986); Ragas v. Tennessee Gas Pipeline Company, 136 F.3d 455, 458 (5th Cir. 1998). 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 nomnoving party. Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986); Ragas, 136 F.3d at 458.
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. Eason v. Thaler, 73 F.3d 1322. 1325 (5th Cir. 1996). Unsubstantiated assertions, improbable inferences, and unsupported speculation are not competent summary judgment evidence. See Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir.), cert. denied, 513 U.S. 871 (1994). The party 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. Ragas, 136 F.3d at 458. 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., see also Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915-16 n,7 (5th Cir.), cert. denied, 506 U.S. 832 (1992). "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 which 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, summary judgment must be granted. Celotex, 477 U.S. at 322-23.
III. Analysis A. Defendant's Motion to Strike
The court is not inclined to grant broad motions to strike various items of evidence submitted in connection with a motion for summary judgment. Often, the challenged items of evidence will not affect the court's determination of the issues, and a resolution of the motion to strike will be unnecessary. In any event, once a party has communicated its concerns by moving to strike, the court is perfectly capable of determining whether the evidence should be considered in making its rulings. The court will exclude such evidence sua sponte where necessary (because the evidence would affect the court's ruling) and appropriate (because the evidence is not properly before the court). In this case, the court need not address the motion because even in considering this evidence the court reaches the same result. The court therefore denies as moot Defendant's Motion to Strike Plaintiff's Summary Judgment Evidence.
B.
Defendant's Motion for Summary Judgment
Defendant advances several arguments in its motion for summary judgment. Two arguments apply to all of Plaintiff's claims: that Defendant cannot be found liable because NTS Fleet, not Defendant, was Plaintiff's employer; and that the termination was based on legitimate nondiscriminatory reasons. In addition, Defendant asserts that Plaintiff is not "disabled" within the meaning of the ADA, and that all accommodations requested for his disability were in fact granted. Defendant further denies the allegations of hostile work environment based on religious discrimination, and asserts that in any event the alleged remarks were neither made by Plaintiff's supervisor nor sufficiently severe and pervasive to constitute a hostile work environment.
1.
No Employment Relationship Between Plaintiff and Defendant
Claims under Title VII, the ADEA, and the ADA require "an employment relationship between the plaintiff and the defendant." Deal v. State Farm County Mut Ins. Co. of Tex., 5 F.3d 117, 118 n. 2 (5th Cir. 1993) (Title VII and the ADEA); Bloom v. Bexar County, Tex., 130 F.3d 722, 724-25 (5th Cir, 1997) (noting the same requirement for claims under the ADA). Section 1981 extends to discrimination involving any contract, not merely an employment contract; when the contract in question is an employment contract, however, an employment relationship between plaintiff and defendant is also required for a § 1981 claim. Kyles v. Calcasieu Parish Sheriff's Dept., 395 F. Supp. 1307, 1310-11 (W.D. La. 1975).
"All persons shall have the same right . . . to make and enforce contracts . . and to the full and equal benefit of all laws and proceedings for the security of persons and property. . . as is enjoyed by white citizens." 42 U.S.C. § 1981.
The situation in the current case is somewhat confusing. The style of the case seems to indicate that Plaintiff intended to sue two defendants — FDC (including FDC "d/b/a NTS Fleet Services, Inc.") and NTS. Defendant submitted an affidavit, by the employee who maintains Defendant's legal records, showing that NTS Fleet Services, Inc. was a separate corporation rather than a "d/b/a" alter ego, and Plaintiff has submitted nothing other than conclusory allegations to controvert this. The court further notes that Plaintiff requested waiver of service only from FDC; neither NTS Fleet nor NTS was served and the Court has no personal jurisdiction over either of these entities. The court therefore must conclude that this action is solely against FDC.
The complaint, however, referred to the parties as "Defendant" in the singular.
Affidavit of Terri Alberhasky, Defendant's Brief in Support of Motion for Summary Judgment, Exhibit F ("Alberhasky Affidavit"). Ms. Alberhasky is an analyst who maintains Defendant's legal records for all entities that Defendant purchases or acquires.
The complaint alleges that Plaintiff was an employee of Defendant FDC. Defendant, however, has asserted from the beginning — starting with its answer filed on March 11, 1998 — that Plaintiff was employed by NTS Fleet, not FDC. Defendant has presented affidavits that these entities were separate legal entities and that Plaintiff was employed by NTS Fleet, not FDC. Plaintiff here seems to dispute that NTS Fleet was his employer, but provides no competent summary judgment evidence establishing an employment relationship with FDC. That employment application forms, employee benefit forms, and severance packages for the corporate parent were used by subsidiaries is certainly not out of the ordinary in the corporate world. Other documents, including a draft separation agreement, cover letter, and pay stubs, reflected either NTS or "FDC Fleet Services, Inc." as the employer, rather than FDC. The court therefore concludes that Defendant was not Plaintiff's employer, and thus normally cannot be held liable for a claim under Title VII, the ADEA, the ADA, or 42 U.S.C. § 1981.
Given this disclosure, the court finds totally inexplicable Plaintiff's failure to amend his complaint or join NTS Fleet, and his decision to revoke the settlement agreement.
Alberhasky Affidavit. Plaintiff notes that other affidavits presented by Defendant refer to some of these entities as "divisions" or "business units," but that is hardly inconsistent with a determination that they were also distinct corporations.
Affidavit of Vincent K. Shepherd, Defendant's Brief in Support of Motion for Summary Judgment, Exhibit F ("Shephard Affidavit"). At the time of the events that gave rise to this action, Mr. Shephard was in charge of the human resources function at NTS Fleet.
The use of this name was explained by Defendant, by affidavit, as a clerical error during the short period of time between the acquisition by FDC and Plaintiff's termination, The affidavit further explains that all of the funds for these paychecks came from NTS, rather than FDC, bank accounts and that the 1996 W-2's reflected NTS Fleet as the employer. See Affidavit of Cathy Genoways, Defendant's Reply Brief in Support of Motion for Summary Judgment. Exhibit J. The court finds this plausible, and it has not been rebutted by Plaintiff.
2. Single Employer Doctrine
The lack of a direct employment relationship does not end the analysis. Plaintiff relies on Fifth Circuit precedents concerning the "single employer" doctrine, under which "superficially distinct entities may be exposed to liability upon a finding they represent a single, integrated enterprise: a single employer." Trevino v. Celanese Corp., 701 F.2d 397, 404 (5th Cir. 1983). "Factors considered in determining whether distinct entities constitute an integrated enterprise are (1) interrelation of operations, (2) centralized control of labor relations, (3) common management, and (4) common ownership or financial control." Id. "This analysis ultimately focuses on the question whether the parent corporation was a final decision-maker in connection with the employment matters underlying the litigation, and all four factors are examined only as they bear on this precise issue." Lusk v. Foxmeyer Health Corp., 129 F.3d 773, 777 (5th Cir. 1997) (emphasis added). There is "a strong presumption that a parent corporation is not the employer of its subsidiary's employees," so "common management and ownership . . . alone are insufficient to establish single employer status." Id. at 778. A finding that the corporations are a "single employer" requires "evidence of control suggesting a significant departure from the ordinary relationship between a parent and its subsidiary — domination similar to that which justifies piercing the corporate veil." Id.
Plaintiff only makes a conclusory statement that "the evidence presented in the 23 attachments to Kirshner's Affidavit, Ex. A, [a]long with Exhibits E, F, G, H, and I establish[es] material and genuine issues of fact." That fails to meet the requirement "to identify specific evidence in the record and to articulate the precise manner in which that evidence supports his or her claim." Ragas, 136 F.3d at 458. This failure alone would justify the court in ruling against Plaintiff; nevertheless, the court has searched the summary judgment record for evidence as to the four factors discussed in Trevino.
With respect to the first factor, interrelation of operations, the court notes that FDC and NTS Fleet had separate offices and employees. FDC was headquartered in Atlanta, Georgia while NTS Fleet was based in Fort Worth, Texas. NTS Fleet was not even a direct subsidiary of FDC, but a subsidiary of IPS, which was a subsidiary of FDC. The court found no indication that operations were more interrelated than is normal for a parent and subsidiary. The first factor therefore provides no support for a finding that FDC and NTS Fleet were a "single employer."
Shephard Affidavit.
Complaint.
Affidavit of Stephen Selzer, Defendant's Brief in Support of Motion for Summary Judgment, Exhibit F ("Selzer Affidavit"). At the time of the events that gave rise to this action, Mr. Selzer was the President of NTS Fleet.
Alberhasky Affidavit, Shephard Affidavit, Selzer Affidavit.
The second factor concerns centralized control of labor relations, and particularly the parent's involvement in the employment decision that gives rise to the cause of action. Plaintiff makes a conclusory allegation that FDC "was a final decisionmaker in the daily employment decisions of EDS Fleet Services, Inc. and/or NTS" but supports this only with a generic reference to the summary judgment record as a whole. By contrast, Defendant provides an affidavit that asserts that Defendant "did not involve itself in the day-to-day employment practices or decisions" of NTS Fleet, including reviewing applications for employment, hiring/termination decisions, and performance evaluations. Further, the summary judgment record does not show any involvement by Defendant in terminating Plaintiff — the key employment decision in this action. In fact, Selzer, the President of NTS, asserts that he was responsible for the ultimate termination decisions in the reduction-in force. The second factor therefore provides strong evidence that FDC and NTS Fleet were not a "single employer."
Plaintiff's Supplemental Response and Brief in Opposition to Defendant's Motion for Summary Judgment, at 10.
Shephard Affidavit.
The only competent evidence that even remotely indicates any involvement by FDC in any employment decisions was the use by NTS Fleet of FDC's employment application forms, employee benefit forms, and severance packages. As noted previously, that is common in the corporate world and certainly insufficient to support an inference of involvement by a corporate parent.
Selzer Affidavit.
The third factor, common management, also provides no support for Plaintiff's position. Plaintiff asserts that "FDC controlled the transfers of these individuals from one subsidiary to another" and that key individuals (Steve Selzer, Kim Mitchell, and Vince Shephard) involved in Plaintiff's termination "all reported to Charlie Fote, the executive Vice President of Defendant FDC in the chain of command." The depositions to which Plaintiff refers clearly show that Selzer, Mitchell, and Shephard did not report directly to Fote. The fact that officers of a subsidiary eventually report, through several intermediate steps in the chain of command, to an officer of the parent is the corporate norm, rather than "a significant departure from the ordinary relationship between a parent and its subsidiary," Lusk, 129 F.3d at 778. Further, Defendant provides evidence that FDC and NTS Fleet have never had common directors and had only one officer in common (out of thirteen officers of FDC) at the time of the events that gave rise to this action. This level of "common management" is certainly no more than "the ordinary relationship between a parent and its subsidiary," Lusk, 129 F.3d at 778, and quite likely less. The third factor does not help establish Plaintiff's theory that FDC and NTS Fleet were a "single employer."
Plaintiff's Supplemental Response and Brief in Opposition to Defendant's Motion for Summary Judgment, at 3.
Mitchell Deposition, at 7-8: Selzer Deposition, at 46-47; Shephard Deposition, at 123-24. These depositions are attached as unnumbered exhibits to Plaintiff's Supplemental Response.
Alberhasky Affidavit.
The last factor to be considered is common ownership or financial control. Because IPS was a wholly-owned subsidiary of FDC and NTS Fleet was a wholly-owned subsidiary of IPS, this factor supports Plaintiff's contention. Common ownership or financial control, however, is insufficient by itself to support a finding that two corporations constitute a single employer. Id. ("common management and ownership . . . alone are insufficient to establish single employer status").
After reviewing the summary judgment evidence, the court must conclude that FDC and NTS Fleet are not a "single employer." Neither is there sufficient evidence to establish an employment relationship between Plaintiff and Defendant. Accordingly, there is no genuine issue of material fact as to Defendant's liability for alleged discriminatory actions by its subsidiary. Because this forecloses an action against Defendant regardless of the merits of the claims, there is no genuine issue of material fact with respect to this action and Defendant is entitled to judgment as a matter of law. Accordingly, summary judgment in Defendant's favor is appropriate on all of Plaintiff's claims. The court therefore grants summary judgment to Defendant on all claims.
Defendant also argues that its termination of Plaintiff was based on legitimate, nondiscriminatory reasons, that Plaintiff is not "disabled" within the meaning of the ADA, and that the actions alleged as a matter of law do not constitute a hostile work environment based on religious discrimination. Based on its ruling, the court need not address these additional grounds for summary judgment.
IV. Conclusion
For the above-stated reasons, there is no genuine issue of material fact present in the record with respect to the underlying requirement for employment discrimination claims of an employment relationship between Plaintiff and Defendant. The court makes no determination, and expresses no opinion, as to the merits of Plaintiff's claims, but concludes that Plaintiff has sued the wrong party. Defendant therefore is entitled to judgment as a matter of law. Defendant's Motion for Summary Judgment is granted, and Plaintiff's claims are hereby dismissed with prejudice. Defendant's Motion to Strike Plaintiff's Summary Judgment Evidence is denied as moot. Judgment will issue by separate document.
It is so ordered this 30th day of November, 2000.