IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
EDWARD ARTHER GOMEZ,
JONAS SAENZ, Individually and
as an Agent and/or Employee of
State Farm Insurance Company;
MIKE SANCHEZ, Individually and
as an Agent and/or Employee of
State Farm Insurance Company;
JEFFREY SMITH, Individually and
as an Agent and/or Employee of
State Farm Insurance Company;
STATE FARM INSURANCE COMPANY,
Appeal from the United States District Court for the
Southern District of Texas
USDC No. B-97-CV-114
November 1, 2000
Before JOLLY, JONES, and SMITH, Circuit Judges.
Edward Gomez appeals the district court's grant of summary
judgment on his federal discrimination claims and state law
negligence, emotional distress, and tortious interference with
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
contract claims for defendants, Jonas Saenz, Mike Sanchez, Jeffrey
Smith, and State Farm Mutual Automobile Insurance Company.1 We
Gomez began working for State Farm as an auto estimator on
October 31, 1983. He was employed in Harlingen, Texas, from 1983
until 1987, and worked in the Weslaco, Texas office before moving
to the McAllen, Texas office from 1990 until his discharge in April
1996. Gomez's duties as an estimator included inspecting damaged
motor vehicles and providing estimates regarding the amount of
damage and costs for repair.
Gomez claims that during his employment in Harlingen he was
subjected to various racial epithets, including "pachuco," "chon,"
"chango," "grease monkey," "wetback," and "illegal." He was,
however, unable to provide the names of any person who used the
epithets toward him. Nevertheless, Gomez further argues that the
harassment and ridicule increased after his transfer to McAllen.
On June 3, 1992, Gomez's attorney sent a letter to State
Farm's president and to Jeffrey Smith's supervisor complaining
about allegations of discriminatory conduct and a hostile work
environment. On June 18, 1992, State Farm replied to Gomez's
The individual appellees, Jonas Saenz, Mike Sanchez, and
Jeffrey Smith, each served as Gomez's supervisor at different
points during his employment with State Farm.
[End Page 2]
attorney, urging Gomez to take advantage of State Farm's "open
door" policy and discuss specific instances of discrimination and
harassment with the Regional Personnel Office.
In 1993, Gomez received a "below expected performance"
evaluation. In both 1994 and 1995, he was given an "expected
performance" rating. He received a salary increase in 1995. Gomez
contends that over the next two years he was continually harassed
by Appellees Saenz and Sanchez, who were then Gomez's supervisors.2
In April 1996, Gomez was fired by State Farm. Gomez was
informed that his discharge stemmed from his inability to
accomplish various job tasks and his inability to get along with
co-workers, management, and third party vendors.3 On September 14,
1996, Gomez filed a charge of discrimination with the Equal
Employment Opportunity Commission ("EEOC"). On May 19, 1997, he
filed suit against the appellees, Saenz, Sanchez, Smith, and State
Farm, in federal district court. Gomez's complaint alleged racial
discrimination, hostile work environment, and retaliation under 42
Specifically, Gomez claims that Saenz unjustifiably issued
three written work performance warnings from December 1995 to June
1997. He also argues that Saenz and Sanchez would visit body shops, collect performance information, and use that information to
The specific incident that led to the termination of Gomez's
employment was an alleged verbal outburst with a Van Burkleo Motors
employee, during which Gomez asked a vendor, "Who do you think you
are, God? . . . Do you think we need to kneel down before you?"
[End Page 3]
U.S.C. § 2000e (Title VII of the Civil Rights Act) and 42 U.S.C.
§ 1981 (Section 1981), intentional infliction of emotional
distress, tortious interference with contract, and state law
violations of negligent hiring, supervision, and retention.4
On October 10, 1997, after a period of discovery, the
appellees moved for summary judgment. After a series of replies,
responses, and continued discovery proceedings, the trial court
granted the motion for summary judgment and dismissed the entire
case on July 22, 1999.
We review summary judgment motions under de novo review,
applying the same standard as the district court. See Armstrong v.
City of Dallas, 997 F.2d 62
, 65 (5th Cir. 1993). To withstand a
properly supported motion for summary judgment, a nonmoving party
must present evidence to support the elements of its prima facie
claim on which it bears the burden of proof at trial. Celotex
Corp. v. Catrett, 477 U.S. 317
, 321-23, 106 S.Ct. 2548 (1986);
National Association of Government Employees v. City Public Service
Board of San Antonio, 40 F.3d 698
, 712 (1994). If a rational trier
of fact could not find for the nonmoving party based on the
Gomez did not assign error to the trial court's dismissal of
his negligence claims; therefore, those claims are barred from
consideration by this court. See Cavallini v. State Farm Mutual
Auto Ins. Co., 44 F.3d 256
, 260 n.9 (5th Cir. 1995).
[End Page 4]
evidence presented, no genuine issue of fact for trial exists.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574
584-88, 106 S.Ct. 1348 (1986). The question is not whether a mere
scintilla of evidence exists in favor of the nonmovant; rather, the
inquiry is whether the nonmovant could, on the strength of the
evidence in the record, carry its burden on the essential elements
before a reasonable jury. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242
, 251, 106 S.Ct. 2505 (1986). "If the [nonmovant's]
evidence is merely colorable, or is not significantly probative,
summary judgment may be granted." Id. at 249-50.
We stress that "[c]onclusory allegations unsupported by
specific facts, however, will not prevent an award of summary
judgment; â€˜the plaintiff [can]not rest on his allegations . . . to
get to a jury without any significant probative evidence tending to
support the complaint.'" National Association of Government
Employees, 40 F.3d at 713 (quoting Anderson, 477 U.S. at 249).
Instead, the nonmovant must move beyond the pleadings and designate
specific facts to support a genuine issue for trial. Stults v.
Conoco, Inc., 76 F.3d 651
, 656 (5th Cir. 1996).
We first address Gomez's federal claims in turn before
analyzing his claims under Texas state law.
[End Page 5]
Gomez's Title VII claims against the individual appellees
(Saenz, Sanchez, and Smith) are barred by Fifth Circuit precedent.
See Indest v. Freeman Decorating Inc., 164 F.3d 258
, 262 (5th Cir.
1999) (holding that, because a Title VII suit against an employee
is actually a suit against the corporation itself, a party may not
maintain a suit against both an employer and its agent as it would
impose double liability). We will therefore address only his claim
that State Farm violated Title VII and Section 1981 by discharging
him, by subjecting him to a hostile working environment, and by
retaliating against him for complaining about racial
Gomez alleges discriminatory discharge and retaliatory
discharge under Title VII and Section 1981.6 The district court
Although Gomez has alleged Section 1981 violations by the
individual defendants, he has failed to argue such violations in
the briefs and has not presented any evidence linking any one of
the individual defendants to such claims.
Gomez's hostile work environment Title VII claim is barred by
the statute of limitations. Under Title VII, an individual must
first file a charge of discrimination with the EEOC within three
hundred days of the alleged unlawful employment practice. 42
U.S.C. § 2000e(5)(e)(1). Gomez filed his charge with the EEOC on
September 14, 1996. The concrete allegations Gomez makes all refer
to events before 1995. As to the general allegation that a hostile
work environment continued through the end of his employment, Gomez
provides no evidence of this, not even the names of those who supposedly uttered racial epithets.
[End Page 6]
determined that Gomez failed to establish a prima facie case for
either claim and, therefore, the court granted summary judgment on
both claims in favor of appellees. We agree that Gomez has failed
to present a prima facie case for either claim.
[End Page 1]
To establish a prima facie case of discriminatory discharge
under Title VII and Section 1981, a plaintiff must show that: (1)
he is a member of a protected group; (2) he possessed the
qualifications necessary for the position he held; (3) he was
discharged from that position despite his qualifications; and (4)
he was treated less favorably than similarly situated non-members
of the protected class. Daigle v. Liberty Life Insurance Co., 70 F.3d 394
(5th Cir. 1995); Nieto v. L&H Packing Co., 108 F.3d 621
624 n.7 (5th Cir. 1997). The district court found that Gomez
failed to establish the fourth element, and thus Gomez's
discriminatory discharge claim could not survive summary judgment.
The record lacks any evidence to suggest that State Farm's
conduct toward Gomez, including his discharge, was motivated by any
factor other than his deficient performance. Gomez does not
challenge as false the reasons given for his discharge. It is true
that Gomez alleges that he was singled out for criticism by
supervisors. He offers no evidence, however, to establish that
non-minorities at State Farm were treated differently, or to show
[End Page 7]
in any other way that the basis given for his treatment and his
discharge was pretextual. Gomez's deposition testimony clearly
establishes that he had no personal knowledge as to whether his co-
employees' work was subject to criticism and review. To establish
discriminatory discharge, Gomez must show more than the fact that
his work was subject to criticism. We have often emphasized that
an employee's own subjective belief of discrimination, no matter
how genuine, cannot serve as the basis for judicial relief. See,
e.g., Nichols v. Loral Vought Sys. Corp., 81 F.3d 38
, 42 (5th Cir.
1996); Armendariz v. Pinkerton Tobacco Co., 58 F.3d 144
(5th Cir. 1995); Portis v. First Nat'l Bank of New Albany, 34 F.3d 325
, 329 (5th Cir. 1994); Grizzle v. Travelers Health Network,
Inc., 14 F.3d 261
, 268 (5th Cir. 1994). This is especially true
where the nondiscriminatory reason for discharge is not effectively
challenged. In sum, the evidence before the district court on
summary judgment simply does not rise above unsubstantiated
allegations and subjective accusations of discrimination. Thus,
Gomez has failed to establish a prima facie case of race or
national origin discrimination, and we affirm the district court's
grant of summary judgment in favor of State Farm on this claim.
[End Page 2]
Gomez argues that his discharge was not only based on race
discrimination, but that it was also in retaliation for his oral
[End Page 8]
and written complaints about being discriminated against. To
establish a prima facie case of retaliatory discharge, a plaintiff
must show that: (1) he was engaged in a protected activity; (2) he
was subjected to an adverse employment action by the employer; and
(3) a causal nexus existed between the plaintiff's participation in
the protected activity and the adverse employment action. Scrivner
v. Socorro Independent School District, 169 F.3d 969
, 972 (5th Cir.
1999); See also Ray v. Iuka Special Mun. Separate School Dist., 51 F.3d 1246
, 1249 (5th Cir. 1995). The district court found that
Gomez failed to prove the first prong of the prima facie case--that
he engaged in protected activity. The court found there was
insufficient evidence to show that his alleged complaints of race
discrimination were objectively reasonable.
We affirm the district court's ruling, although on alternative
grounds. We find that Gomez failed to establish the third prong of
his prima facie case--that there was a causal connection between
his participation in protected activity and his discharge. No
evidence was produced to even suggest that Gomez's discharge was a
result of his complaint to State Farm. First, the letter to State
Farm alleging a hostile work environment was written in June 1992,
almost four years before Gomez's discharge in April 1996. This
lapse of time between the alleged protected activity and the
[End Page 9]
employment decision fails to suggest any causal connection.7
Moreover, the record is replete with evidence showing that Gomez
was discharged from State Farm solely for his performance
deficiencies. We have held that the fact that a plaintiff
complains to his employer even "moments before the termination does
not, absent other evidence, constitute sufficient proof that the
termination was retaliatory." Seaman v. CSPH, Inc., 179 F.3d 297
301 (5th Cir. 1999). Gomez fails to aver any evidence to present
a genuine issue of fact on the issue of causation. We therefore
affirm the district court's grant of summary judgment for the
appellees on Gomez's retaliatory discharge claim.8
In addition to his federal claims, Gomez also alleges state
law violations of intentional infliction of emotional distress and
[End Page 7]
While Gomez argues that his alleged verbal harassment and
criticism were also sparked by his complaints to State Farm, this
court has held that "[h]ostility from fellow employees . . . and
resulting anxiety, without more, do not constitute ultimate
employment decisions, and therefore are not the required adverse
employment actions" for purposes of a Title VII retaliation claim.
Mattern v. Eastman Kodak Co., 104 F.3d 702
, 707 (5th Cir. 1997).
This is because "Title VII was designed to address ultimate
employment decisions, not to address every decision made by
employers that arguably might have some tangential effect upon
those ultimate decisions." Dollis v. Rubin, 77 F.3d 777
(5th Cir. 1995). Therefore, we address only Gomez's discharge for
purposes of his retaliatory discrimination claim.
Although Gomez references Section 1981 in his pleadings, he
makes no specific argument under Section 1981. In his briefs he
collapses that claim into his Title VII argument.
[End Page 10]
tortious interference with contract. We affirm the district
court's grant of summary judgment on both claims.
To recover on an intentional infliction of emotional distress
claim in Texas, a plaintiff must establish that: (1) the defendant
acted intentionally or recklessly; (2) the conduct was "extreme"
and "outrageous"; (3) the actions by the defendant caused the
plaintiff's distress; and (4) the resulting emotional distress was
severe. Twyman v. Twyman, 855 S.W.2d 619, 621 (Tex. 1993). The
district court dismissed Gomez's claim for emotional distress
damages, finding that his claim was governed by a two-year statute
of limitations under Texas law and was therefore barred. See Tex.
Civ. Prac. & Rem. Code Ann. § 16.003(a).
We agree that, under Texas law, any events occurring before
May 19, 1995, cannot be the basis of an intentional infliction of
emotional distress claim by Gomez. See Patin v. Allied-Signal,
Inc., 865 F.Supp. 365, 369 (E.D. Tex. 1994), aff'd, 69 F.3d 1
Cir. 1995). We further find that Gomez has failed to present
colorable evidence of "extreme and outrageous" conduct by State
To the extent Gomez asserts his emotional distress claim
against the individual defendants, we find no specific allegations
or facts in the record to support such a claim. In fact, the
record reveals that Gomez cannot name a single individual who
allegedly called him derogatory names or otherwise contributed to
the alleged emotional distress.
[End Page 11]
Farm from 1995 to 1997 to survive summary judgment. As we have
previously stated, "[l]iability does not extend to mere insults,
indignities, threats, annoyances, or petty oppressions." See
Weller v. Citation Oil & Gas Corp., 84 F.3d 191
, 195 (5th Cir.
1996) (quoting Ugalde v. W.A. McKenzie Asphalt Co., 990 F.2d 239
243 (5th Cir. 1993)). As the district court noted, termination is
insufficient to constitute "extreme and outrageous" conduct. See
Wornick Co. v. Casas, 856 S.W.2d 732 (Tex. 1993). Therefore,
Gomez's evidence, even if taken as true, is insufficient to state
a claim for intentional infliction of emotional distress as a
matter of Texas law. We next turn to Gomez's claim of tortious
interference with contract.
After he was discharged from State Farm, Gomez obtained
employment with West Point Lincoln Mercury on January 9, 1997.
However, he was fired from that position two months later. Gomez
alleges that State Farm tortiously interfered with his employment
contract with West Point Lincoln Mercury by threatening to
discontinue State Farm's business relationship with West Point
unless Gomez was fired.10
There is not a scintilla of evidence to suggest any
individual defendant engaged in tortious interference.
[End Page 12]
The district court dismissed this claim, stating that "Gomez
has presented no evidence that any of the Defendants engaged in any
willful and intentional act of interference with regard to Gomez's
employment at West Point." The district court was correct. It is
true that two documents from the Texas Workforce Commission were
produced during discovery in support of Gomez's claim.11 Neither
the record nor the briefs reflect what sort of records these
documents are or whose statements purport to be thereon. In fact,
the copies in the record are not fully readable. On the other
hand, the Texas Workforce Commission records clearly reflect the
reasons for Gomez's termination by West Point. The specific
finding of the Workforce Commission states that Gomez was
discharged from West Point because of his "inability to perform
[his] assigned work to [West Point's] satisfaction." Moreover,
West Point's deposition by written questions delineates specific
instances of misconduct by Gomez that culminated in his discharge,
including complaints by eight customers who are individually named
in the document.12 Gomez has offered no evidence to challenge these
In the documents, one of the rationales given for Gomez's
dismissal from West Point states: "Employer cannot prove
allegations. Dismissed claimant only after threat of losing
insurance companies account." Another document reads: "State Farm
requested we make a change or they would pull account."
West Point's deposition reveals that Gomez was warned both
verbally and in writing about failing to keep customers updated on
the status of their vehicles, taking too long on estimates, and
[End Page 13]
charges. Gomez bears the burden to adduce evidence that would
create material facts upon which a jury could rule for him, and
this he has failed to do. We therefore affirm the district court's
grant of summary judgment on this claim.
We conclude that the district court's grant of summary
judgment in favor of the appellees was correct on all claims.
Gomez failed to establish a prima facie case under Title VII or
Section 1981, did not present evidence of "extreme and outrageous"
conduct to support a charge of intentional infliction of emotional
distress, and failed to show a viable tortious interference with
contract claim. Accordingly, the district court's judgment is
A F F I R M E D.
neglecting to properly check vehicles upon delivery to customers.
[End Page 14]