Taylor v. Coastal Security Ltd

* 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this opinion should not be published and is not precedent except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.
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________________
No. 01-21315
Summary Calendar
__________________________
CHARLES W. TAYLOR, JR.,
Plaintiff-Appellant,
versus
COASTAL SECURITIES, LTD,
Defendant-Appellee.
___________________________________________________
Appeal from the United States District Court
For the Southern District of Texas
(Civil Action No. H-00-3156)
___________________________________________________
July 12, 2002
Before DAVIS, BENAVIDES, and CLEMENT, Circuit Judges.
PER CURIAM:*
Taylor became a vice president in the public finance
department of Coastal Securities, L.P. (“Coastal”) in August 1999.
David Holland, a partner and Senior Vice President of Coastal,
hired Taylor with the approval of Dwight Whitehead, President and
CEO of Coastal. Taylor was expected to help maintain existing
accounts and to generate new revenue either by increasing the value

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of existing contracts or securing new clients. Taylor failed to
bring in any new revenue during his employment. Taylor was
Coastal’s only African-American banker.
In February 2000, Coastal’s human resources manager informed
Holland that a female employee had been offended by a comment
Taylor made comparing the strawberries on a cake to a woman’s
nipples. The employee also reported being offended by Taylor’s
behavior on two other occasions. With Whitehead’s approval,
Holland terminated Taylor’s employment the day after hearing about
the employee’s allegations. Both Holland and Whitehead testified
that Taylor’s alleged questionable behavior, some of which Taylor
admits should cause a company to fire an individual, was not the
reason for the termination but rather merely played into the timing
of the decision. Holland and Whitehead further testified that
Taylor’s failure to produce any revenue and his insufficient
prospects for production were the reasons for his termination.
Taylor filed suit against Coastal, claiming race-based
discrimination. The district court considered Taylor’s federal
claim that Coastal violated Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 1981, and his state claims that Coastal violated
the Texas Commission on Human Rights Act (“TCHRA”) and committed
the tort of intentional infliction of emotional distress. The
district court granted Coastal’s motion for complete summary
judgment on each of the claims.

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Taylor appeals the grant of summary judgment on his
discrimination and intentional infliction of emotional distress
claims as well as the district court’s decision to exclude certain
portions of Taylor’s affidavit testimony. We review the grant of
summary judgment de novo, Norman v. Apache Corp., 19 F.3d 1017,
1021 (5th Cir. 1994), and the exclusion of evidence for abuse of
discretion. St. Romain v. Industrial Fabrication and Repair
Services, 203 F.3d 376, 381 (5th Cir. 2000).
Taylor claims that the district court abused its discretion
when it excluded three portions of Taylor’s affidavit testimony.
The district court struck the fifth and eighth sentences in
paragraph two of Taylor’s affidavit for demonstrating a lack of
personal knowledge and a basis in hearsay and thus failing to
comply with Rule 56(e). The district court also struck paragraph
nineteen of Taylor’s affidavit for improperly contradicting his
prior deposition testimony.
The fifth sentence of the affidavit reads: “After Mr. Hoopes
and Mr. Howell left Coastal I was hired to save their accounts.”
The eighth sentence reads: “Mr. Hoopes and Mr. Howell accepted
employment with competitors of Coastal, and were attempting to
encourage the customers with whom they had developed relationships
while employed by Coastal to shift their business to new
employers.” Having carefully reviewed the record and these
sentences in context, we rule that the district court did not abuse

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its discretion in determining that the statements lack personal
knowledge and are based in hearsay.
The district court struck paragraph nineteen for improperly
contradicting Taylor’s prior deposition testimony. In his
deposition Taylor testified that the only physical symptom of the
distress he suffered due to his termination was sleep loss and
scoffed at the notion that he may have been treated for a
psychological or emotional problem. In a subsequent affidavit
Taylor claimed that after his termination he suffered from
depression, appetite loss, humiliation, and sleeping problems. The
district court called the affidavit testimony “self-serving” and
found it inadmissible due to its inconsistency with Taylor’s
earlier deposition. See S.W.S. Erectors, Inc. v. Infax, Inc., 72
F.3d 489, 495 (5th Cir. 1996) (“It is well settled that this court
does not allow a party to defeat a motion for summary judgment
using an affidavit that impeaches, without explanation, sworn
testimony.”). The district court did not abuse its discretion in
ruling that the affidavit did not supplement but rather was
inconsistent with the earlier deposition.
Even if admitted, paragraph nineteen would not alter the
emotional distress ruling. Texas takes a strict approach to
intentional infliction of emotional distress. See GTE Southwest,
Inc. v. Bruce, 998 S.W.2d 605, 612 (Tex. 1999). Taylor’s situation
is not one of the unusual and extreme circumstances where Texas

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allows such a claim. Id. at 613.
Taylor has further failed to produce evidence that the
legitimate non-discriminatory reasons Coastal presented for
Taylor’s termination, lack of revenue production and insufficient
prospects for production, were a pretext for discrimination.
Taylor has not put forth evidence that he was treated any
differently than other employees in his position.
Having carefully reviewed the record and read the briefs, we
AFFIRM the district court’s grant of summary judgment on the
discrimination and emotional distress claims for essentially the
reasons stated in that court’s opinion. We also AFFIRM the court’s
decision to exclude portions of the affidavit.

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