BACKGROUND

On February 8, 2011, Plaintiff was employed by Accenture as an Industry Solutions and Services Manager [Dkt. 51-2 at 3]. In October 2015, Plaintiff’s job title changed to Technology Consulting Manager [Dkt. 51-2 at 3]. Plaintiff worked primarily with Accenture’s Irving, Texas office where Defendant Anil Varughese was the human resources representative [Dkt. 51-2 at 3]. Plaintiff’s direct supervisor was Miguel Myhrer and Plaintiff’s career counselor was Defendant Greg Leja [Dkt. 51-2 at 3].

Plaintiff’s last project with Accenture ended on October 31, 2016 [Dkt. 51-1 at 29]. On or about December 2, 2016, Plaintiff contacted Leja to tell him that Plaintiff was leaving the company [Dkt. 51-1 at 36]. On December 5, 2016, Plaintiff sent a similar message to Mia Johnson, a human resources contact, again informing her that he would like to exit from the company [Dkt. 51-1 at 37]. Plaintiff avers that he did not receive a response to either message [Dkt. 51-1 at 37]. Thereafter, on December 13, 2016, Johnson sent Plaintiff an email asking if he had any recent business development efforts [Dkts. 51-2 at 38; 77-6 at 2]. The same day Plaintiff responded: “I would like to arrive on my last date with Accenture. If possible can I proceed with the exit process by this Friday [December 16, 2016]. I am planning to be out of country from 19th to Jan[.] 9th and would like to be sooner[.]” [Dkts. 51-2 at 38; 77-6 at 2]. After Johnson forwarded Plaintiff’s email, Miguel Myhrer, Plaintiff’s supervisor, indicated that he “would love to have [Plaintiff] stay” and asked if they could meet later that day [Dkts. 51-2 at 37; 77-6 at 4]. Plaintiff responded that it was hard to make the decision to leave a “dynamic team” and that he would schedule a time on Myhrer’s calendar to discuss his situation [Dkts. 51-2 at 33; 77-6 at 5]. Over the next two days Plaintiff met with several individuals, including Myhrer, where he expressed his disappointment about not being promoted and various “missed opportunities” [Dkts. 51-1 at 40; 51-2 at 36]. On December 19, 2016, Johnson followed up with the Accenture team to “see if there was a resolution for [Plaintiff] staying or if [Accenture] should continue with [Plaintiff’s] initial request to leave the firm” [Dkt. 51-2 at 35]. Managing director Edward Bae responded that he had spoken with Plaintiff on Friday, December 16, 2016, and that they were “scheduled to regroup over today [December 19, 2016] and tomorrow [December 20, 2016] [Dkt. 51-2 at 35]. However, Plaintiff made no further contact with Bae or any other Accenture member on December 19 or 20, 2016 [Dkts. 51-1 at 51; 51-2 at 43-44].

Between December 19, 2016 to January 5, 2017, Plaintiff traveled to India to visit family and support his mother [Dkt. 51-1 at 29]. Plaintiff did not request any type of leave of absence—personal, medical, or otherwise—prior to taking his trip to India [Dkt. 51-2 at 5].[1] Plaintiff returned to Plano, Texas on January 5, 2017, but did not attempt to return to work or further contact anyone at Accenture at such time [Dkt. 51-1 at 29]. In fact, Plaintiff did not contact anyone at Accenture between December 17, 2016 and January 30, 2017 [Dkt. 51-1 at 59]. As a result, on January 19, 2017, Accenture processed Plaintiff’s resignation, indicating his last day worked (and/or last date of employment) as December 16, 2016 [Dkts. 51-2 at 4; 77-6 at 14]. On January 25, 2017, Anil Varughese sent Plaintiff an email to both Plaintiff’s work and personal email addresses, entitled Resignation, notifying Plaintiff that he needed to conduct an exit interview, return his personal laptop, and take other steps due to his resignation [Dkts. 51-1 at 52; 51-2 at 4, 39]. Plaintiff did not respond to the emails [Dkt. 51-1 at 52]. In the late hours of January 30, 2017 and/or early morning of January 31, 2017, Plaintiff’s employee ID was deactivated thereby revoking his network access [Dkt. 51-2 at 4].

*2 On January 31, 2017, Plaintiff went to the Irving, Texas office to ask Varughese why his network access had been disabled [Dkt. 51-2 at 4, 44]. Varughese informed Plaintiff that because Accenture had not heard back from Plaintiff, Accenture processed his resignation [Dkt. 51-2 at 44]. According to Varughese, Plaintiff indicated during this conversation that he had intended to charge paid time off and make the week of January 30, 2017 his final week with Accenture [Dkt. 51-2 at 44]. On February 2, 2017, Plaintiff’s termination from Accenture was marked as voluntary [Dkt. 77-6 at 41].

Plaintiff did not contact Accenture again, for over a year, until early 2018, when he submitted service requests to Accenture regarding questions about his departure and insurance coverage [Dkt. 51-1 at 47]. Plaintiff was put in contact with human resources representative Defendant Toni Corban [Dkt. 51-1 at 47]. Plaintiff avers that in responding to his service requests and questions regarding his termination and medical benefits, Corban was “insensitive” and “hostile” [Dkt. 51-1 at 47]. Plaintiff’s service request tickets were ultimately either closed or abandoned [Dkt. 51-1 at 47].

On April 17, 2018, Plaintiff filed a charge with the U.S. Equal Employment Opportunity Commission (the “EEOC”) against Accenture for claims of discrimination based on race, national origin, disability, and for retaliation, alleging he was denied promotions and pay raises [Dkt. 51-3 at 5]. Notably, Plaintiff’s EEOC charge of discrimination did not assert a claim based on color and stated that the dates the discrimination took place were, at the earliest December 1, 2012, and at the latest April 6, 2018 [Dkt. 51-3 at 5]. Additionally, no claims were asserted against Greg Leja, Toni Corban, or Anil Varughese (collectively, the “Individual Defendants”). The EEOC dismissed Plaintiff’s claim the same day for being untimely filed [Dkt. 51-3 at 3].

Subsequently, in July 2018, Plaintiff applied for a new position—Senior Manager—with Accenture [Dkt. 51-1 at 61]. Plaintiff received a response from Emily Self, a human resources representative, declining to offer Plaintiff the position and indicating that Plaintiff’s skills and experience did not match Accenture’s current needs [Dkt. 51-2 at 47]. After receiving Ms. Self’s response, on July 18, 2018, Plaintiff filed the instant lawsuit [Dkt. 1].

On October 24, 2018, Plaintiff filed his Second Amended Complaint asserting claims for discrimination pursuant to Title VII (race and color) and 42 U.S.C § 1981 (race), interference with and denial of medical benefits under the Family and Medical Leave Act (“FMLA”), 29 U.S.C. § 2615, the Consolidated Omnibus Reconciliation Act of 1985 (“COBRA”), 29 U.S.C. §§ 1161-1166, and also for retaliation [Dkt. 34-1 at 6]. On March 27, 2019, Defendants filed the instant Motion for Summary Judgment [Dkt. 51]. Plaintiff filed his initial Response to the Motion for Summary Judgment on May 8, 2019 [Dkt. 73] and moved for leave to file an Amended Response on May 9, 2019, which the Court granted deeming Plaintiff’s Amended Response as properly before the Court [Dkts. 77, 80]. Defendants filed their Reply on May 16, 2019 [Dkt. 82] and Plaintiff filed a Sur-Reply on May 23, 2019 [Dkt. 83]. Defendants' Motion for Summary Judgment is therefore ripe for consideration.

LEGAL STANDARD

The purpose of summary judgment is to isolate and dispose of factually unsupported claims or defenses. SeeCelotex Corp. v. Catrett, 477 U.S. 317, 327 (1986). Summary judgment is proper if the pleadings, the discovery and disclosure materials on file, and any affidavits “[show] that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A dispute about a material fact is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The trial court must resolve all reasonable doubts in favor of the party opposing the motion for summary judgment. Casey Enterprises, Inc. v. Am. Hardware Mut. Ins. Co., 655 F.2d 598, 602 (5th Cir. 1981) (citations omitted). The substantive law identifies which facts are material. Anderson, 477 U.S. at 248.

*3 The party moving for summary judgment has the burden to show that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Id. at 247. If the movant bears the burden of proof on a claim or defense on which it is moving for summary judgment, it must come forward with evidence that establishes “beyond peradventure all of the essential elements of the claim or defense.” Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986). But if the nonmovant bears the burden of proof, the movant may discharge its burden by showing that there is an absence of evidence to support the nonmovant’s case. Celotex, 477 U.S. at 325; Byers v. Dall. Morning News, Inc., 209 F.3d 419, 424 (5th Cir. 2000). Once the movant has carried its burden, the nonmovant must “respond to the motion for summary judgment by setting forth particular facts indicating there is a genuine issue for trial.” Byers, 209 F.3d at 424 (citing Anderson, 477 U.S. at 248-49). The nonmovant must adduce affirmative evidence. Anderson, 477 U.S. at 257. And the Court need only consider the record materials actually cited by the parties, though the Court may consider the entire record. Fed. R. Civ. P. 56(c)(3).

OBJECTIONS TO SUMMARY JUDGMENT EVIDENCE

Evidence Presented

Defendant submits the following evidence in support of its Motion for Summary Judgment:

Plaintiff has raised no objections to Defendants' summary judgment evidence.[3] Defendants have asserted objections to certain of Plaintiff’s summary judgment evidence [Dkt. 82 at 2].

Defendants' Objections to Plaintiff’s Summary Judgment Evidence

Specifically, Defendants assert the following objections to Plaintiff’s summary judgment evidence: (1) Plaintiff’s exhibits were untimely submitted; (2) the 2010 emails in Exhibit 4 and pages 25-28 of Exhibit 6 were not produced in discovery; (3) Exhibit 5 (Plaintiff’s payroll and medical records) and the emails in Exhibit 6 are irrelevant, immaterial, and contain impermissible hearsay; and (4) Plaintiff’s Affidavit (Exhibit 3) is a self-serving affidavit [Dkt. 82 at 2-3]. Plaintiff responds that: (1) the Rule 26(f) report indicated that he intended to use screenshots from the Accenture career portal as evidence (Exhibit 4); (2) Defendants fail to articulate which statements are irrelevant, unreliable, immaterial, hearsay, conclusory, without personal knowledge, and/or inadmissible; and (3) his Affidavit (Exhibit 3) is not contradictory to his deposition testimony [Dkt. 83 at 12-13].

Untimely Evidence

*4 Defendants object to the entirety of Plaintiff’s summary judgment evidence as untimely, [Dkts. 72; 82 at 3]. The Court previously deemed that Plaintiff’s amended response [Dkt. 77] was properly before the Court [Dkt. 80]. In so doing, Plaintiff’s attached Exhibits were also properly submitted. As such, the Court overrules this objection.

Failure to Produce Discovery

Defendants next object to the 2010 emails in Exhibit 4 and pages 25-28 of Exhibit 6 as Plaintiff did not previously produce those records during discovery [Dkt. 82 at 2]. Rule 26(a)(1)(A)(ii) mandates that a party initially disclose “all documents ... that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, unless the use would be solely for impeachment....” Fed. R. Civ. P. 26(a)(1)(A)(ii); Martino v. Kiewit New Mexico Corp., 600 F. App'x 908, 910-911 (5th Cir. 2015). Rule 37(c) states that upon failure to do so, a “party is not allowed to use that information ... to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.” Fed. R. Civ. P. 37(c); De La Garza v. City of Corpus Christi, No. 2:13-CV-353, 2014 WL 12586753, at *4–5 (S.D. Tex. Nov. 5, 2014). In evaluating whether a violation of Rule 26 is harmless, and thus whether the evidence may be used in support of a motion, the Court looks to four factors: (1) the importance of the evidence; (2) the prejudice to the opposing party of including the evidence; (3) the possibility of curing such prejudice by granting a continuance; and (4) the explanation for the party’s failure to disclose. Mobile Telecommunications Techs., LLC v. Blackberry Corp, No. 3:12-cv-1652-M, 2016 WL 6271717, at *1-2 (N.D. Tex. May 6, 2016) (citing Texas A & M Research Foundation v. Magna Transp., Inc., 338 F.3d 394, 402 (5th Cir. 2003)).

Plaintiff asserts that he was “forced” to introduce Exhibit 4 in response to Defendants' allegations and further argues that because he indicated in the Rule 26(f) report that he intended to use screenshots as evidence, the Court should consider the Exhibit [Dkt. 83 at 13]. Merely indicating the potential use of evidence is not the equivalent of producing discovery as required under Rule 26. Considering the purpose of Rule 26(a)(1)(A) and each of the relevant factors, the Court finds Plaintiff lacks a substantial justification for failing to produce these documents.[4] See also De La Garza, 2014 WL 12586753, at *5 (finding the prejudice of allowing defendant to rely on discovery materials that were not previously produced to be significant). The Court sustains the objection and strikes Plaintiff’s Exhibit 4 and pages 25-28 of Plaintiff’s Exhibit 6.

Irrelevant, Immaterial, Containing Hearsay

Defendants object to Plaintiff’s Exhibit 5, containing COBRA, medical, and insurance documents as well as “emails at Exhibit 6 [Doc. 77-5] on the basis these records are irrelevant and immaterial to his claims, and contain impermissible hearsay” [Dkt. 82 at 2]. Defendants do not point to any specific statements within these exhibits that are objectionable. As such, Defendants' objections do not comply with Federal Rule of Evidence 103(a)(1), and are overruled. See Anderson v. Dallas Cty., Texas, No. 3:05-CV-1248-G, 2007 WL 1148994, at *5 (N.D. Tex. Apr. 18, 2007), aff'd, 286 F. App'x 850 (5th Cir. 2008). “The [C]ourt is not required to review large quanta of evidence to ferret out inadmissible statements. Tucker v. SAS Inst., Inc., 462 F. Supp. 2d 715, 722 (N.D. Tex. 2006). Federal Rule of Evidence 103(a)(1) requires an objecting party to make specific objections detailing the specific evidence the party wishes to have stricken and stating the specific grounds upon which each piece of evidence should be stricken. See United States v. Avants, 367 F.3d 433, 445 (5th Cir. 2004). Objections lacking specificity do not satisfy the requirements of Rule 103. United States v. Polasek, 162 F.3d 878, 883 (5th Cir. 1998). “A loosely formulated and imprecise objection will not preserve error. Rather, a trial court judge must be fully apprised of the grounds of an objection.” Id. (citations omitted).

Contradictory Statements and the Sham Affidavit Doctrine

*5 Defendants object to Plaintiff’s Affidavit (Exhibit 3) as a “self-serving affidavit” that is “irrelevant, unreliable, immaterial, hearsay, conclusory, without personal knowledge, and inadmissible per the Rules of Evidence” [Dkt. 82 at 2]. Defendants specifically assert that Plaintiff’s Affidavit “is contradictory from his deposition testimony on numerous points, such as his new claims that he verbally “withdrew” his resignation, and that he asked for medical leave during a meeting on January 31, 2017” [Dkt. 82 at 2]. Plaintiff contends that his affidavit is not contradictory because: (1) he used the word “reconsidered” in his deposition, which, per Plaintiff is clearly interchangeable in meaning with the word “withdrew”; and (2) “[t]he deposition states that Varughese knew [he] was ill” [Dkt. 83 at 12].

Under the “sham affidavit” doctrine, a party cannot file an affidavit (or unsworn declaration) to contradict his own prior testimony, without any explanation for the change in the testimony, in an attempt to create a fact issue and avoid summary judgment. See Lujan v. Navistar, Inc., 555 S.W.3d 79, 85 (Tex. 2018) (“[F]ederal appellate courts ‘have held with virtual unanimity that a party cannot create a genuine issue of fact sufficient to survive summary judgment simply by contradicting his or her own previous sworn statement (by, say, filing a later affidavit that flatly contradicts that party’s earlier sworn deposition) without explaining the contradiction or attempting to resolve the disparity.’ ”) (quoting Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 806 (1999)). When a summary-judgment affidavit is subsequently executed after a prior sworn statement is made, and there is a clear contradiction on a material point without explanation, the “sham affidavit” doctrine is applied and the contradictory statements in the affidavit should be disregarded. See Powell v. Dallas Morning News L.P., 776 F. Supp. 2d 240, 247 (N.D. Tex. 2011) (“[N]onmovant cannot defeat a motion for summary judgment by submitting an affidavit [that] contradicts, without explanation, his previous testimony.”); Quicksilver Res. Inc. v. Eagle Drilling, LLC, 2010 WL 4115397, at *1 (S.D. Tex. Oct. 19, 2010) (quoting Albertson v. T.J. Stevenson & Co., Inc., 749 F.2d 223, 228 (5th Cir. 1984)(“Although the court must resolve all factual inferences in favor of the nonmovant, the nonmovant cannot manufacture a disputed material fact where none exists. Thus, the nonmovant cannot defeat a motion for summary judgment by submitting an affidavit which directly contradicts, without explanation, his previous testimony.”) (citations omitted)); Doe ex rel. Doe v. Dallas Indep. Sch. Dist., 220 F.3d 380, 386 (5th Cir. 2000) (if a party who “has been examined at length on deposition could raise an issue of fact simply by submitting an affidavit contradicting his own prior testimony, this would greatly diminish the utility of summary judgment as a procedure for screening out sham issues of fact.”) (citation omitted). Stated another way, a party cannot create a genuine issue of material fact merely by contradicting his or her own prior sworn statement. Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 806 (1999); Sanchez v. Dallas/Fort Worth Int'l Airport Bd., 438 F. App'x 343, 346-47 (5th Cir. 2011) (a self-serving affidavit, without more evidence, will not defeat summary judgment).

With respect to Plaintiff’s purported request for medical leave, at deposition on November 7, 2018, Plaintiff stated the he did not explicitly tell anyone at Accenture that he needed medical leave [Dkt. 51-1 at 26]. Other than a conversation on January 31, 2017, where Plaintiff said that he was stressed out and unwell/sick [Dkt. 51-1 at 25], Plaintiff testified that he had no other communications with anyone at Accenture that might be construed as asking for medical leave [Dkt. 51-1 at 27]. Plaintiff further stated that he told no one at Accenture about his diagnosis and that his reason for taking a trip to India was for vacation time to visit family and support his mother [Dkt. 51-1 at 28-29]. To the extent Plaintiff alleges he had told Varughese that he was “unwell” or “sick” the Court will not strike such statements from Plaintiff’s affidavit; however, to the extent Plaintiff now asserts that he affirmatively requested medical leave, the Court finds such statements are contradictory to the deposition testimony.

*6 Regarding his resignation, Plaintiff’s deposition testimony reads in relevant part:

[Dkt. 51-1 at 49-51, 53, 58] (emphasis added).

To the extent Plaintiff’s Affidavit contains statements that he affirmatively and/or explicitly verbally withdrew his resignation emails, such statements contradict his prior deposition testimony and will not be given any weight. SeeGWTP Investments, L.P. v. SES Americom, Inc., No. 3:04-CV-1383-L, 2006 WL 8437531, at *3 (N.D. Tex. June 13, 2006) (striking statements in declarations to the extent they contradict prior deposition testimony and no adequate reason was given for such contradictions), aff'd, 497 F.3d 478 (5th Cir. 2007); Doe v. Dallas Indep. Sch. Dist., 220 F.3d 380, 386 (5th Cir. 2000), cert. denied, 531 U.S. 1073 (2001) (“If a party who has been examined at length in deposition could raise an issue of fact simply by submitting an affidavit contradicting his own prior testimony, this would greatly diminish the utility of summary judgment as a procedure for screening out sham issues of fact.”); Roberts v. National Autotech, Inc., 192 F.Supp.2d 672, 680 n.33 (N.D. Tex. 2002) (striking portions of declarations contradicting prior deposition testimony); Kariuki v. Tarango, 709 F.3d 495, 505 (5th Cir. 2013) (“[W]ithout more, a vague or conclusory affidavit is insufficient to create a genuine issue of material fact in the face of conflicting probative evidence.”). Plaintiff “may not manufacture a genuine issue of material fact [in defending a motion for summary judgment] by submitting an affidavit that impeaches prior testimony without explanation.” Doe ex rel. Doe v. Dallas Indep. Sch. Dist., 220 F.3d 380, 386 (5th Cir. 2000).

*7 In sum, Defendants' objection is sustained as to those statements contained in Plaintiff’s Affidavit which contradict his previously sworn deposition testimony, including specifically any statements by Plaintiff regarding any explicit and/or affirmative verbal “withdrawal” of his resignation and any explicit and/or affirmative request for medical leave during a meeting on January 31, 2017.

ANALYSIS

Plaintiff’s Amended Complaint asserts claims for (1) race and color discrimination (violations of Title VII), (2) race discrimination (42 U.S.C. § 1981), (3) interference with and denial of medical leave and benefits (the FMLA, 29 U.S.C § 2615, and COBRA provisions, 29 U.S.C. §§ 1161-1166), and (4) retaliation [Dkt. 34-1 at 6]. Plaintiff clarifies in his Response to Defendants' Motion for Summary Judgment that his Title VII and 1981 claims are asserted against Defendants Accenture and Leja [Dkt. 77 at 16] and that his claims under the FMLA are asserted against Defendants Accenture and Varughese [Dkt. 77 at 19]. Plaintiffs claim related to COBRA appears to be asserted against Defendants Accenture and Corban.[5]

Plaintiff’s Title VII Claims – Exhaustion of Administrative Remedies[6]

Plaintiff asserts in his Amended Complaint that Accenture and Leja discriminated against him based on race and color in violation of Title VII and also that he was retaliated against [Dkt. 34-1 at 1]. Defendants contend that each of Plaintiff’s Title VII claims must be dismissed for failure to exhaust administrative remedies [Dkt. 51 at 26-28].

Before filing a lawsuit under Title VII, a plaintiff must first exhaust his EEOC administrative remedies. Taylor v. Books A Million, Inc., 296 F.3d 376, 378–79 (5th Cir. 2002). (“Employment discrimination plaintiffs must exhaust administrative remedies before pursuing claims in federal court.”). Exhaustion occurs when [1] [a] plaintiff files a timely charge with the EEOC and [2] receives a statutory notice of right to sue.” Id. Complaints that are not addressed or reasonably related to the charges filed with the EEOC cannot form the basis of Title VII claims in a subsequent lawsuit. See Sanchez v. Standard Brands, Inc., 431 F.2d 455 (5th Cir. 1970). Although “pro se complaints are held to less stringent standards” in this context, courts nonetheless construe the pre-filing requirements of Title VII strictly. Id. at 378 (affirming dismissal where plaintiff failed to file within ninety days of receiving his right-to-sue letter); see also Butler v. Orleans Parish Sch. Bd., No. Civ. A. 00–0845, 2001 WL 1135616 (E.D. La. Sept. 25, 2001) (dismissing claims for failure timely to file after receiving right-to-sue letter when plaintiff filed one day after the filing deadline due to family illness), cited with approval in Taylor, 296 F.3d at 378-79.

Failure to Include in EEOC Charge

*8 Plaintiff’s charge of discrimination, dated April 17, 2018, asserts a claim of retaliation and discrimination based on race, national origin, and disability [Dkt. 51-3 at 5]. Plaintiff does not assert color as a basis for the alleged discrimination, nor does the charge contain any facts pertaining to such alleged color discrimination, Plaintiff’s service ticket requests submitted in 2018, or the denial of his application for the Senior Manager position in July 2018. Notably, in articulating the particulars of Plaintiff’s charge, Plaintiff contends “I believe I was discriminated against on the basis of my Race, National Origin, Disability, and in Retaliation for participating protected activity when the following occurred: 1. Throughout my employment, I was denied promotions and pay raises. After complaining to [Accenture] of this treatment, nothing was done. 2. On or about February 17, 2017, I was notified that my employment had been terminated” [Dkt.51-3 at 5].

“[A] Title VII plaintiff’s failure to exhaust [his] administrative remedies is not a jurisdictional bar but rather a prudential prerequisite to suit.” Davis v. Fort Bend County, 893 F.3d 300, 304-05 (5th Cir. 2018) (clarifying that “the exhaustion requirement under Title VII is not jurisdictional”) (quoting Davenport v. Edward D. Jones & Co., L.P., 891 F.3d 162, 169 (5th Cir. 2018)). If “an employee timely files an EEOC charge and receives a right to sue notice from the EEOC, the employee may pursue only those claims that can ‘reasonably be expected to grow out of the charge of discrimination.’ ” Young v. City of Houston, 906 F.2d 177, 179 (5th Cir. 1990). “An employee’s failure to include a claim in his EEOC charge prevents the employee from suing on that claim, unless what was in the charge would have led the EEOC to investigate and would have put the employer on notice that [the employee] would be pursuing that claim.” Goswami v. Unocal, No. H-12-2953, 2013 WL 5520107, at *7 (S.D. Tex. Oct. 3, 2013). “In interpreting the plaintiff’s administrative charge, the court construes the scope of the EEOC charge liberally, and ‘look[s] slightly beyond [the charge’s] four corners.’ ” Scott v. Navarro College Dist., No. 3:18-cv-0634-G, 2018 WL 3820149, at *3 (N.D. Tex. Aug. 10, 2018) (quoting Pacheco v. Mineta, 448 F.3d 783, 788-89 (5th Cir. 2006)). Therefore, “the proper question is whether the charge has stated sufficient facts to trigger an EEOC investigation ... and to put an employer on notice of the existence and nature of the charges against him.” Simmons-Myers v. Caesars Entm't Corp., 515 F. App'x 269, 272-73 (5th Cir. 2013) (per curiam) (citing Manning v. Chevron Chem. Co., 332 F.3d 874, 878 (5th Cir. 2003)). In this case, Plaintiff’s failure to articulate a claim for color discrimination, or provide any facts related to color or events occurring after April 2018, preclude any reasonable expectation that the EEOC would investigate the color discrimination claim and/or events after April 2018, including specifically any claims related to the new position Plaintiff applied for in July 2018. See, e.g., Fine v. GAF Chemical Corp., 995 F.2d 576, 578 (5th Cir. 1993) (holding that a charge for gender discrimination occurring in February 1990 could not give rise to a reasonable expectation that the EEOC would discover gender discrimination that occurred in October 1990); Jefferson v. Christus St. Joseph Hosp., 374 F. App'x 485, 490 (5th Cir. 2010) (affirming district court’s ruling that certain claims were not exhausted where plaintiffs failed to either check the appropriate box on the EEOC form or describe the discriminatory conduct in the charge); Brooks v. Firestone Polymers, LLC, 70 F. Supp. 3d 816, 841-42 (E.D. Tex. 2014) (plaintiff was foreclosed from pursing a “failure to promote due to disability” claim where he failed to mention or allude to any facts in the charge that would have put the EEOC on notice of his disability discrimination claim). As such, Plaintiff’s Title VII claims based on color discrimination and claims based on events post April 2018 must, therefore, be dismissed with prejudice.[7]

Failure to Timely File

*9 Although Plaintiff’s charge does assert claims for race discrimination and retaliation (based on failure to promote and/or termination of employment after making complaints), such claims are still nonetheless subject to dismissal for failure to exhaust. An individual claiming discrimination in violation of Title VII must file a charge of discrimination with the EEOC within 180 days after the alleged unlawful employment practice occurred, or within 300 days if the claimant initially files with a state or local agency with authority to grant or seek relief from such practice. E.E.O.C. v. WC & M Enters., Inc., 496 F.3d 393, 398 (5th Cir. 2007); 42 U.S.C. § 2000e–5(e)(1). The period begins to run once the plaintiff knows or should have known of the unlawful employment action. Hull v. Emerson Motors/Nide, 532 F. App'x 586, 587 (5th Cir. 2013) (citing Phillips v. Leggett & Platt, Inc., 658 F.3d 452, 455 (5th Cir. 2011)). As set forth above, the filing of a timely EEOC charge is a statutory prerequisite to filing a Title VII suit. WC & M Enters, Inc., 496 F.3d at 398 (citing Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 109 (2002)). Generally, when an employment discrimination charge is untimely filed with the EEOC or designated state agency, a suit based upon the untimely charge should be dismissed. Barrow v. New Orleans S.S. Ass'n, 932 F.2d 473, 476–77 (5th Cir. 1991).

Plaintiff’s last day of work with Accenture was December 16, 2016 [Dkts. 51-2 at 4; 77-6 at 14]. Plaintiff’s last contact with Accenture regarding the termination of his employment ID access was on January 31, 2017 [Dkt. 51-2 at 4, 44]. Even if the Court uses the date of January 31, 2017 in calculating, Plaintiff’s charge of discrimination was due within 300 days, or by November 27, 2017. See Griffin v. City of Dallas, 26 F.3d 610, 612 (5th Cir. 1994).[8]Here, Defendants have submitted a copy of Plaintiff’s EEOC charge of discrimination with the motion for summary judgment [Dkt.51-3 at 5]. Because Plaintiff filed his EEOC charge long after November 27, 2017—on April 17, 2018 (almost five months late)—Plaintiff’s claims for race discrimination and retaliation are untimely; the EEOC’s “Dismissal and Notice of Rights” indicates as such [Dkt. 51-3 at 3]. The Court finds dismissal appropriate here as Plaintiff “cannot remedy this situation by filing another Charge of Discrimination” in an attempt to exhaust his administrative remedies. Arias v. Amazon Fulfillment, No. 4:18-cv-00141-O-BP, 2019 WL 1230369, at *4 (N.D. Tex. Feb. 19, 2019) (dismissing plaintiff’s GINA and ADEA discrimination claims with prejudice for failure to exhaust administrative remedies where plaintiff’s charge of discrimination was filed more than 300 days since the last date of defendant’s allegedly violative conduct); Flowers v. Sessions, No. 2:17-CV-118-KS-MTP JEFF, 2019 WL 1246199, at *2, *5 (E.D. Miss. Mar. 18, 2019) (dismissing plaintiff’s discrimination claim with prejudice where plaintiff failed to produce evidentiary support that he had exhausted his administrative remedies before the EEOC). Accordingly, because Plaintiff failed to timely file, Plaintiff’s race discrimination and retaliation claims should also be dismissed with prejudice. See, e.g., Callins v. Swift Transp. Co. of Ariz., LLC, No. 3:17-cv-1975-C-Bn, 2019 WL 937220, at *5-6 (N.D. Tex. Feb. 4, 2019) (dismissing plaintiff’s retaliation claim with prejudice for failure to timely exhaust such claim); Walker v. Univ. of Texas Sw. Med. Ctr., 638 F. App'x 394-95 (5th Cir. 2016); Johnson v. Farmers v. State Bank & Trust Co., No. Civ. 05-1339, 2006 WL 860959, at *2 (W.D. La. Mar. 30, 2006). Notwithstanding such conclusion, the Court also addresses Plaintiff’s race discrimination and retaliation claims, as alleged in the Amended Complaint, on the merits.

Title VII and Section 1981 - Race Discrimination

At the outset, the Court notes that the elements of the race claims under Title VII and 42 U.S.C § 1981 are identical. Pratt v. City of Houston, Tex., 247 F.3d 601, n.1 (5th Cir. 2001) (citing Casarez v. Burlington Northern/Santa Fe Co., 193 F.3d 334, 337 n. 3 (5th Cir. 1999)). The Court therefore evaluates the claims together.[9] Under Title VII, employers are prohibited from “discharg[ing] an individual, or otherwise discriminat[ing] against any individual because of such individual’s race, or national origin.” 42 U.S.C. § 2000e-2(a)(1). To survive a motion for summary judgment, a Title VII plaintiff must first establish a prima facie case of discrimination by a preponderance of the evidence. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–04, (1973). In order to establish a prima facie case of discrimination, Plaintiff must show, by a preponderance of the evidence, the following: (1) he was a member of a protected class; (2) he was qualified for the position; (3) he suffered an adverse employment action; and (4) after his adverse employment action, he was replaced by someone not a member of the protected class or that others similarly situated and outside of the protected class were more favorably treated. Urbano v. Continental Airlines Inc., 138 F.3d 204, 206 (5th Cir. 1998), Bauer v. Albemarle Corp., 169 F.3d 962, 966 (5th Cir. 1999). If Plaintiff establishes a prima facie case, the burden then shifts to the Defendants to submit a legitimate, non-discriminatory business reason for the action taken. If Defendants are successful in doing so, the burden then shifts back to the Plaintiff to show that the explanation was merely pre-textual. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 (1973).

*10 Plaintiff has not established a prima facie case of race discrimination. Plaintiff alleges that he was not promoted at Accenture and was wrongfully or forcefully terminated from his job based on race [see generally Dkt. 34-1]. Plaintiff has not presented any evidence to demonstrate that he was qualified for a promotion and/or that he has actually suffered any adverse employment action. Plaintiff’s deposition testimony makes clear he never applied for or pursued a specific promotion. In addition, Plaintiff voluntarily resigned from Accenture on December 16, 2016 [Dkt. 51 at 28-29, 48-49], as made clear by the evidence of record, including the declaration of Toni Corban:

[Dkt. 51-2 at 4]. Defendants additionally have submitted email correspondence supporting Ms. Corban’s declaration [Dkt. 51-2 at 32-46]. Further, Plaintiff’s email to Mia Johnson dated on December 13, 2016 specifically states:

[Dkt. 51-2 at 34]. In a response email dated the same day, Plaintiff further avers “[i]t is very hard to take a decision like this, especially leaving a dynamic team like this.” [Dkt. 51-2 at 33] (emphasis added). Although Plaintiff spoke with other executives after he submitted his resignation emails regarding potentially staying on with the company [Dkt. 51-2 at 36], an email from Kiwan Edward Bae demonstrates that Plaintiff was scheduled to reconvene with Bae over December 19 and 20, 2016 [Dkt. 51-2 at 35]. Plaintiff however did not attend the meeting(s) with Bae or make further contact with Accenture until after his employee access was disabled approximately six weeks later [Dkt. 51-2 at 4]. Plaintiff’s voluntary resignation and subsequent failure to make contact for six weeks further constitute a legitimate, non-discriminatory reason for the end of his employment.

Plaintiff argues pretext by asserting that Defendants knew he was on vacation and therefore improperly processed his resignation [Dkt. 83 at 8-9]. No evidence exists to support pretext. Rather, in further support of Accenture’s decision to discharge Plaintiff after he failed to contact Accenture between December 19, 2016 and January 31, 2017, the evidence reflects:

*11 [Dkt. 52-1 at 5]. In his deposition testimony, Plaintiff admits that his emails in early December do not say anything about vacation, he did not turn in any paperwork to Accenture to formally ask for vacation time, and he never used a vacation form [Dkt. 51-1 at 39, 51]. “[A]n employee’s own subjective belief of discrimination, no matter how genuine, cannot serve as the basis for judicial relief.” Malimban v. Continental Airlines, 165 F.3d 24 (5th Cir. 1998); see also McVille v. Inter-Community Healthcare, Inc., 460 F. App'x 353 (5th Cir. 2012) (affirming summary judgment where the plaintiff had nothing more than her subjective belief in discrimination); Roa v. City of Denison, No. 4:16-CV-00115-ALM-CAN, 2017 WL 9287012 (E.D. Tex. Aug. 29, 2017) (recognizing Fifth Circuit authority that a subjective belief of discrimination “no matter how genuine” is insufficient to entitle a plaintiff to judicial relief). There is not a scintilla of evidence that Plaintiff’s race played any role whatsoever in the decision to process Plaintiff’s resignation request or to not promote Plaintiff during his tenure at Accenture. Nor is there evidence in the record that Defendants' explanation of Accenture’s legitimate reason for discharging Plaintiff—that Plaintiff had voluntary resigned and then failed to stay in contact with Defendants regarding potentially staying on with the company—was a pretext for race discrimination. Plaintiff’s resignation was processed because of Plaintiff’s failure to communicate with Accenture after his resignation on December 16, 2016 [Dkt. 51-2 at 4, 32-46].

Moreover, to the extent Plaintiff now claims that his resignation was a constructive discharge, Plaintiff also has not sustained his burden. Under Title VII, a resignation is actionable only where that resignation amounts to constructive discharge. See Brown v. Kinney Shoe Corp., 237 F.3d 556, 566 (5th Cir. 2001). Demonstrating constructive discharge imposes a high burden. To carry this burden, the plaintiff “must offer evidence that the employer made the employee’s working conditions so intolerable that a reasonable employee would feel compelled to resign.” Faruki v. Parsons, 123 F.3d 315, 319 (5th Cir. 1997). In the constructive discharge inquiry, the Court examines the working environment as a whole, and, to find for the plaintiff, must conclude that the resignation was reasonable under all the circumstances. Barrow v. New Orleans S.S. Ass'n, 10 F.3d 292, 297 (5th Cir. 1994). “[T]he subjective state of mind of the employee is irrelevant.” Robinson v. Waste management of Texas, 122 F. App'x 756, 758 (5th Cir. 2004) (citing Epps v. NCNB Tex., 7 F.3d 44, 46 (5th Cir. 1993)). The Fifth Circuit in Robinson indicated that:

Id. Plaintiff has presented no evidence in regards to any of the seven factors listed in Robinson to support a finding that he was constructively discharged. Therefore, in light of the summary judgment evidence before the Court and having applied the Parties' respective burdens, Plaintiff’s claims for race discrimination under Title VII and Section 1981 fail and should be dismissed.

Title VII -Retaliation Claim

Plaintiff appears to assert two theories regarding his retaliation claim: (1) that he was wrongfully terminated in 2017 from his position because he raised concerns to executives [Dkt. 77 at 14] and (2) the denial of his new job application in July 2018 [Dkt. 34-1 at 6]. To make out a prima facie case of retaliation under Title VII, Plaintiff must allege that (1) he engaged in protected activity, (2) he suffered an adverse employment action, and (3) there was a causal connection between the protected activity and the adverse employment action. Stewart v. Miss. Transp. Comm'n, 586 F.3d 321, 331 (5th Cir. 2009). Similar to the Court’s finding in connection with Plaintiff’s race claim, Plaintiff has failed to provide the Court with any evidence to show that a materially adverse action occurred or that “the adverse employment action ... would not have occurred but for [the] protected conduct.”. Strong v. University HealthCare Sys., LLC, 482 F.3d 802, 806 (5th Cir. 2007). As indicated supra, Accenture processed Plaintiff’s resignation after he failed to stay in contact after his meetings on December 16, 2016 [Dkt. 51-2 at 4, 32-46]. Moreover, Plaintiff admits that he did not discuss with anyone on December 16, 2016 (or at any time prior) that he felt he was discriminated against and instead merely discussed his disappointment in not receiving a promotion and “missed opportunities” [Dkts. 51-1 at 40; 51-2 at 36]. It is clear from the summary judgment evidence that Plaintiff’s resignation was processed due to his lack of communication and not because he raised concerns with executives. Similarly, Plaintiff fails to meet his burden regarding the alleged retaliation in July 2018. Although Plaintiff is correct that filing an EEOC complaint is a protected activity, see Hockman v. Westward Commc'ns, LLC, 407 F.3d 317, 330 (5th Cir. 2004), Plaintiff does not show that Defendants were even aware of such filing or that the filing of the EEOC complaint had any bearing on their decision to deny his application for the senior manager position in July 2018. Indeed, the letter specifically indicates that his application was denied because Plaintiff’s “skills and experience do not match Accenture’s current needs” [Dkt. 51-2 at 47]. Further, the Corban declaration avers that Accenture never received an EEOC letter or was aware of Plaintiff’s EEOC complaint [Dkt. 51-2 at 5]. Accordingly, any claims for retaliation likewise fail.

FMLA, 29 U.S.C. § 2615

*12 Plaintiff next claims that Accenture and Varughese interfered with his rights under the FMLA [Dkts. 34-1; 77 at 19]. The FMLA allows an employee to take reasonable leave for medical reasons and prohibits an employer from interfering with, restraining, or denying the exercise or attempt to exercise FMLA rights. 29 U.S.C. §§ 2601, 2615. To prevail on an interference claim under the FMLA, a plaintiff must show that “(1) [he] is an eligible employee under the FMLA, (2) the defendant is an employer subject to the requirements of the FMLA, (3) [he] was entitled to FMLA leave, (4) [he] gave notice to the defendant of [his] intention to take FMLA leave, and (5) the defendant denied [him] the benefits to which, under the FMLA, [he] was entitled.” Lanier v. Univ. of Texas Sw. Med. Ctr., 527 F. App'x 312, 316 (5th Cir. 2013). Defendants claim that Plaintiff cannot succeed on this claim because he was no longer an employee at the time of the alleged notice (on January 31, 2017) and, in any event, Plaintiff did not give sufficient and/or timely notice of his need for medical leave [Dkt. 51 at 41].

“The FMLA has two distinct sets of provisions, which together seek to meet the needs of families and employees and to accommodate the legitimate interests of employers.” Elsensohn v. St. Tammany Parish Sheriff’s Office, 530 F.3d 368, 372 (5th Cir. 2008) (per curiam) (internal quotations omitted). The first set of provisions are prescriptive and provide a series of substantive rights. See id.; see also Hunt v. Rapides Healthcare Sys., LLC, 277 F.3d 757, 763 (5th Cir. 2001), abrogated on other grounds by Wheat v. Fla. Par. Juvenile Justice Comm'n, 811 F.3d 702 (5th Cir. 2016). “The FMLA allows eligible employees to take up to twelve weeks of leave in any one-year period to address a family member’s or the employee’s own serious health condition.” Bryant v. Tex. Dep't of Aging & Disability Servs., 781 F.3d 764, 768 (5th Cir. 2015) (citing 29 U.S.C. § 2612(a)(1)(C)-(D)). Claims for violations of these prescriptive rights are brought under § 2615(a)(1), which makes it unlawful for an employer to interfere with, restrain, or deny the exercise or attempted right of FMLA rights. See Haley v. Alliance Compressor LLC, 391 F.3d 644, 649 (5th Cir. 2004).

The second set of provisions in the FMLA are proscriptive in nature and “bar employers from penalizing employees and other individuals for exercising their rights.” Elsensohn, 530 F.3d at 372. “The proscriptive FMLA rights include an employee’s right not to be discriminated or retaliated against for having exercised the right to take FMLA leave.”Haley, 391 F.3d at 649. Claims for violations of these proscriptive rights are brought under 29 U.S.C. § 2615(a)(2). Id. An employee may bring a suit to enforce his or her prescriptive or proscriptive rights under 29 U.S.C. § 2617(a).

“[F]ormer employees are not eligible for prescriptive protections from their former employers under the FMLA.” Smith v. DeTar Hosp. LLC, No. V-10-83, 2012 WL 2871673, at *13 (S.D. Tex. July 11, 2012); see also Pownall v. City of Perrysburg, 63 Fed. App'x 819, 824 (6th Cir. 2003) (affirming summary judgment in favor of employer on employee’s FMLA claim where employee initially requested FMLA leave but then voluntarily resigned before employer had an opportunity to make a decision on whether to grant leave); Hammon v. DHL Airways, Inc., 980 F. Supp. 919, 927 (S.D. Ohio 1997) (granting summary judgment for employer where employee resigned from his position, and, “as a former employee, he was not an ‘eligible employee,’ and therefore he was not entitled to the protections afforded by the FMLA”). Plaintiff’s resignation was processed on January 19, 2017 and his last day worked was indicated as December 16, 2016 [Dkts. 51-2 at 4; 77-6 at 14]. At the latest, Plaintiff was no longer an employee of Accenture as of January 19, 2017.[10] Plaintiff admits in his deposition testimony that prior to January 31, 2017, he had not told anyone at Accenture that he was having health issues or was seeing a doctor for health issues [Dkt. 51-1 at 26]. Therefore, at the time Plaintiff asserts he requested leave, January 31, 2017, Plaintiff was no longer an employee of Accenture and thus did not qualify for leave under the FMLA. See, e.g., Godwin v. Utilities Comm'n of City of Columbus, Mississippi, No. 1:05CV34-D-D, 2006 WL 2095330, at *2 (N.D. Miss. July 27, 2006) (“The Plaintiff was not an ‘eligible employee’ at the time he received medical attention for his condition because he had already been terminated some two days prior to his hospitalization.”).

*13 Even assuming that Plaintiff was an eligible employee on January 31, 2017, Plaintiff’s FMLA claim would still fail as he did not provide sufficient or timely notice of his intent to take leave. The Fifth Circuit has held that the FMLA requires an employee seeking leave to provide enough information “sufficient to reasonably apprise [the employer] of the employee’s request to take time off for a serious health condition.” Satterfield v. Wal–Mart Stores, Inc., 135 F.3d 973, 977 (5th Cir. 1998). “While an employer’s duty to inquire may be predicated on statements made by the employee, the employer is not required to be clairvoyant.” Id. at 980 (quoting Johnson v. Primerica, 1996 WL 34148, at *5 (S.D.N.Y. Jan. 30, 1996)). Furthermore, the FMLA regulations require employees to provide timely notice to their employers of the need to take leave. Where the need for leave is foreseeable, as with planned medical treatment, the employee must provide at least 30 days advance notice before FMLA leave is to begin. 29 C.F.R. § 825.302(a). If 30 days notice is not practicable because of a lack of knowledge of approximately when leave will begin, the employee should give notice as soon as practicable. 29 C.F.R. § 825.302(a). In situations where the approximate timing of the need for leave is not foreseeable, the employee is to give notice “as soon as practicable.” 29 C.F.R. § 825.303(a). Generally, this means no more than two days after learning of the need for the leave. 29 C.F.R. § 825.303(a).

Here, Plaintiff admits that he never requested FMLA leave prior to leaving for India [Dkt. 51-1 at 27-29]. Indeed, Plaintiff testified during his deposition that at the time he wrote his emails indicating his intent to resign from Accenture he had not mentioned medical leave or had even been to the doctor and/or received a diagnosis [Dkt. 51-1 at 39]. Prior to January 31, 2017, Plaintiff had not brought up health issues with anyone at Accenture [Dkt. 51-1 at 26]. The first time Plaintiff raised any issues concerning his health is during his conversation with Varughese on January 31, 2017, where Plaintiff alleges he told Varughese that he was “unwell” or “sick” [Dkt. 51-1 at 25-26]. This is untimely. Moreover, an employee merely alleging sickness as the reason for his absence does not automatically provide sufficient FMLA notice. See Seaman v. CSPH, Inc., 179 F.3d 297, 302 (5th Cir. 1999)(holding that the employee’s reference to his mental condition did not constitute the requisite notice of an intent to invoke FMLA leave); Satterfield, 135 F.3d at 980 (holding that the “meager” information provided to the employer concerning the employee’s alleged illness was insufficient FMLA-notice). In this case, even assuming that Plaintiff suffered from a FMLA-qualifying medical condition and was an eligible employee, Plaintiff failed to provide Defendants with sufficient notice. The “sharing of the informational burden will not work if employees, for the purposes of litigation, can later designate leave as FMLA-qualifying without making a proper showing that, at the time they requested leave, they put their employer on notice that FMLA leave was necessary due to a serious medical condition.” Willis, 445 F.3d at 419. To place the burden on an employer to make such determinations whenever an employee falls ill has been held “inconsistent with the purposes of the FMLA, because it is not necessary for the protection of employees who suffer from ‘serious health conditions.’ ” Satterfield, 135 F.3d at 981. Because Plaintiff never gave sufficient and/or timely notice of any intention to take FMLA leave his prescriptive claim for interference therefore fails.[11]

Individual Defendants' Liability

*14 Additionally, any claims pursuant to the FMLA as asserted against the Individual Defendants, and more specifically Varughese, also fail because Plaintiff has failed to assert that any of the Individual Defendants had authority to exercise any independent control over whether Plaintiff could take leave or otherwise supervise Plaintiff’s day-to-day activities or have authority to control Accenture’s compliance with the FMLA. See, e.g., Harville v. Texas A&M Univ., 883 F. Supp. 2d 645, 654-55 (S.D. Tex. 2011) (granting motion for summary judgment where individual defendants were not plaintiff’s employers as defined by the FMLA). An FMLA “employer” is “any person who acts, directly or indirectly, in the interest of an employer to any of the employees of such employer.” 29 U.S.C. § 2611(4)(A)(ii)(I).

To determine if an individual is an employer under the FMLA, the Court considers “whether the alleged employer (1) has the power to hire and fire the employees, (2) supervised and controlled employee work schedules or conditions of employment, (3) determined the rate and method of payment, and (4) maintained employment records.” Watson v. Graves, 909 F.2d 1549, 1553 (5th Cir. 1990) (internal citations omitted) (regarding FLSA employers). Courts consider whether a purported employer “independently exercised control over the work situation.” Donovan v. Grim Hotel Co., 747 F.2d 966, 972 (5th Cir. 1984) (internal citation omitted). This requires both a sufficient level of control and a nexus to the protected rights at issue as to each defendant. Id. at 972(holding individual liable because “[i]t was only he who could authorize compliance with the [FLSA]”). Therefore, “[t]he ultimate question is whether the individual had ‘supervisory authority over the complaining employee’ and is ‘responsible in whole or part for the alleged violation.’ ” Rudy v. Consolidated Rest. Co., Inc., No. 3:08–CV–0904–L, 2010 WL 3565418, at *6 (N.D. Tex. Aug. 18, 2010) (citing Riordan v. Kempiners, 831 F.2d 690, 694 (7th Cir. 1987)). Plaintiff has failed to present sufficient evidence and/or argument that any of the Individual Defendants controlled the Plaintiff’s day-to-day work or otherwise supervised his schedule and conditions of employment sufficient to demonstrate that they had the power to act on Accenture’s behalf independently. See Harville, 883 F. Supp. 2d at 655 (“Requesting a termination or condoning an adverse employment action does not equate to the having the authority to execute these employment decisions unfettered.”).

Statute of Limitations

The general statute of limitations for FMLA violations is two years, unless the cause of action alleges a willful violation, in which case the statute of limitations is three years. 29 U.S.C. § 2617(c). Plaintiff asserted a cause of action under the FMLA on October 24, 2018 in his Second Amended Complaint [Dkt. 34-1 at 6]. As indicated supra, Plaintiff did not attempt to request leave or even mention his health issues until January 31, 2017. January 31, 2017 is within even the more restrictive two-year limitations period and thus Plaintiff’s claim is not barred.[12]Defendants contend that “[a]ny claims for wrongful denial of, and/or interference with, leave benefits under the FMLA prior to October 24, 2016 are barred by the two-year statute of limitations period” [Dkt. 51 at 48]. Upon review of the record and summary judgment evidence, the Court does not find Plaintiff makes any such allegations.

COBRA Claim

Lastly, Plaintiff contends that Defendants violated COBRA, 29 U.S.C. § 1161 by failing to timely notify Plaintiff regarding his insurance coverage [Dkts. 34-1 at 6; 77 at 20]. Notably Plaintiff admits that he received notice in the first week of February 2017 [Dkt. 77 at 20].

*15 Under § 1166(a)(2), an employer has a duty to report most qualifying events, including the termination of employment, to its group health plan administrator within 30 days of the qualifying event. The plan administrator must then notify the qualified beneficiary within 14 days of being notified of the qualifying event by the employer. 29 U.S.C. § 1166(c). When an employer is also the administrator of the health plan, several courts have construed 29 U.S.C. § 1166(a) & (c) to give the employer a total of 44 days in which to notify a terminated employee, regardless of when the administrator received notice of the employee’s termination. See, e.g., Roberts v. Nat'l Health Corp., 963 F. Supp. 512, 515 (D.S.C. 1997). In the Fifth Circuit, “the law requires only that the employer make a good faith attempt to comply with COBRA’s notification provision.” Degruise v. Sprint Corp., 279 F.3d 333, 337 (5th Cir. 2002). While the statute itself does not specify what exactly will qualify as notice, numerous courts have held that mailing a COBRA notification to an employee’s last known address satisfies the notification provision. Id. After notification, qualified beneficiaries have 60 days to elect continuation coverage. 29 U.S.C. § 1165(1).

Defendants did not process Plaintiff’s resignation until January 19, 2017 [Dkt. 51-2 at 4]. As such, Plaintiff’s receipt of the notice “at the end of the first week of February” was well within both the 30 day and 44-day deadline to notify Plaintiff of his option to elect COBRA coverage. Plaintiff offers no other argument in support of his claims pursuant to COBRA violations.[13] Accordingly, Plaintiff’s claims for COBRA violations should be dismissed with prejudice.

Attorney’s Fees/Damages

Because none of Plaintiff’s underlying claims can move forward, Plaintiff claims for damages and/or attorney’s fees, including fees pursuant to 29 U.S.C. § 2617(a)(3) of the FMLA, must likewise be dismissed. See Bond v. Abbott Labs., 188 F.3d 506 (6th Cir. 1999) (“[I]t is clear that the plain language of § 2617(a)(3) mandates the award of attorneys' fees only when the plaintiff has proved that the defendant violated the FMLA.”). Additionally, the Court notes that “[a]ttorney’s fees are not available to a non-attorney pro se litigant.” McLean v. Int'l Harvester Co., 902 F.2d 372, 373 (5th Cir. 1990).

CONCLUSION AND RECOMMENDATION

For the foregoing reasons, Defendants Accenture LLP (“Accenture”), Greg Leja, Toni Corban, and Anil Varughese’s Motion for Summary Judgment [Dkt. 51] should be GRANTED. Plaintiff’s claims should be dismissed with prejudice.

Within fourteen (14) days after service of the magistrate judge’s report, any party must serve and file specific written objections to the findings and recommendations of the magistrate judge. 28 U.S.C. § 636(b)(1)(C). In order to be specific, an objection must identify the specific finding or recommendation to which objection is made, state the basis for the objection, and specify the place in the magistrate judge’s report and recommendation where the disputed determination is found. An objection that merely incorporates by reference or refers to the briefing before the magistrate judge is not specific.

Failure to file specific, written objections will bar the party from appealing the unobjected-to factual findings and legal conclusions of the magistrate judge that are accepted by the district court, except upon grounds of plain error, provided that the party has been served with notice that such consequences will result from a failure to object. SeeDouglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996) (en banc), superseded by statute on other grounds, 28 U.S.C. § 636(b)(1) (extending the time to file objections from ten to fourteen days).

Although Plaintiff avers that his trip was “approved” as vacation time [Dkt. 83 at 8-9], Plaintiff’s December 13, 2016 email correspondence made no mention of vacation time and Plaintiff admits that he did not use a vacation form [Dkt. 51-1 at 39, 51].

Plaintiff’s Amended Response indicates that he also attached an “Exhibit 9” containing additional email communications, no such exhibit is contained in the record [see Dkt. 77 at 43].

Plaintiff’s Sur-Reply alleges that Defendants have “failed to produce the aspirations and goals that I set for any year, other than 2016” [Dkt. 83 at 15]. However, Plaintiff does not otherwise object to Defendants' evidence; nor does Plaintiff proffer his goals for other years for the Court’s consideration.

Moreover, Plaintiff’s Sur-Reply only addresses one of the four factors—the explanation for his failure to disclose.

It remains unclear what claims Plaintiff asserts against Corban. Based on Plaintiff’s deposition testimony, Plaintiff believes Corban was supporting hostility against him; her responses to his service requests were related to questions regarding COBRA coverage [Dkt. 51-1 at 46-47]. Therefore, the Court construes Plaintiff’s claims against Corban as interference with COBRA coverage, but as more fully stated infra, to the extent Plaintiff asserts any claims against Corban arising under Title VII, Section 1981, or the FMLA, such claims would fail for the same reasons they fail against the other Individual Defendants.

Section 1981 does not have an administrative remedy exhaustion prerequisite to filing a lawsuit. Caldwell v. Nat'l Brewing Co., 443 F.2d 1044, 1046 (5th Cir. 1971).

Moreover, Plaintiff’s Title VII claims against any of the Individual Defendants must similarly be dismissed. Title VII clearly states that “a civil action may be brought against the respondent named in the charge.” 42 U.S.C. § 2000e-5(f)(1) (emphasis added). Based on this statutory requirement, the Fifth Circuit has “recognize[d] a general rule that ‘a party not named in an EEOC charge may not be sued under Title VII.’ ” EEOC v. Simbaki, Ltd., 767 F.3d 475, 481 (5th Cir. 2014) (quoting Way v. Mueller Brass Co., 840 F.2d 303, 307 (5th Cir. 1988)). Because Plaintiff only names Accenture in his charge of discrimination [Dkt. 51-3 at 5], Plaintiff has failed to exhaust his administrative remedies against the Individual Defendants and any claims against them under Title VII should likewise be dismissed. See, e.g., Aguiniga v. Delgado, No. 3:15cv562-DPJ-FKB, 2016 WL 3620728, at *2 (S.D. Miss. June 28, 2016. Additionally, the Court notes that “Title VII does not permit the imposition of liability upon individuals unless they meet Title VII’s definition of ‘employer.’ ” Grant v. Lone Star Co., 21 F.3d 649, 653 (5th Cir. 1994). Title VII defines an “employer” as “a person engaged in an industry affecting commerce who has fifteen or more employees ..., and any agent of such a person....” 42 U.S.C. § 2000e(b) “[A]ny agent,” is interpreted liberally, but not literally; rather, the phrase conveys Congress’s intent to “import respondeat superior liability into Title VII.” Smith v. Amedisys, Inc., 298 F.3d 434, 449 (5th Cir. 2002) (citations omitted); Lavergne v. HCA Inc., 452 F. Supp. 2d 682, 688-89 (E.D. Tex. 2006). Fifth Circuit precedent is clear that individual employees are not subject to personal liability under Title VII. Muthukumar v. Kiel, 478 F. App'x 156, 158 (5th Cir. 2012) (“[T]here is no individual liability for employees under Title VII.”); Payne v. Univ. of S. Mississippi, 681 F. App'x 384, 389 (5th Cir. 2017)(“[I]ndividuals are not liable under Title VII unless they are employers.”). “Although, under certain circumstances, an immediate supervisor may be considered an ‘agent’ and therefore an ‘employer’ under Title VII, the supervisor faces liability solely in [his] official, not individual, capacity.” Parker v. Benteler Steel Tube Mfg. Corp., No. 17-1453, 2018 WL 3685383, at *2-3 (W.D. La. July 18, 2018)(internal citations omitted). Thus, a Title VII suit against a supervisor, who is not an “employer” in his own right—is actually a suit against the employing corporation. Indest v. Freeman Decorating, Inc., 164, F.3d 258, 262 (5th Cir. 1999). A plaintiff may not maintain a Title VII action against both his employer and the employer’s agent because the employing corporation could face double liability for the same act. Id. (citation omitted). Plaintiff has not asserted that Leja, or any other of the Individual Defendants, including Varughese and Corban, are an employer as defined by § 2000e(b); moreover, because Plaintiff names Accenture as a Defendant to this lawsuit, his Title VII claims against the Individual Defendants are redundant and should fail for these additional reasons. See, e.g., Parker, 2018 WL 3685383, at *2-3.

Plaintiff has not asserted that any exception exists, such as equitable tolling, to excuse any delay in filing his EEOC charge.

Section 1981 claims and Title VII claims are analyzed under the same methodology. Jenkins v. Methodist Hosp. of Dallas, Inc., 478 F.3d 255, 260 (5th Cir. 2007); see also Jones v. Robinson Prop. Group, L.P., 427 F.3d 987, 992 (5th Cir. 2005) ( [T]he only substantive differences between the two statutes [is] their respective statute of limitations and the requirement under Title VII that the employee exhaust administrative remedies.”). Because Plaintiff fails to establish a prima facie case under Title VII he likewise cannot maintain his burden under section 1981. See Spencer v. Sargent, No. 99-60643, 2000 WL 960701, at *1 (5th Cir. June 16, 2000). Additionally, the Court notes that Plaintiff’s section 1981 claim further fails, at least in part, as time-barred. Federal civil rights actions brought under section 1981, which lack an express statute of limitations, are governed by the most closely analogous limitations period provided under state law. Johnson v. Railway Express Agency, 421 U.S. 454, 463–66 (1975); Jones v. Alcoa, Inc., 339 F.3d 359, 364 (5th Cir. 2003). Under Texas law, one must file a discrimination claim under section 1981 within two years of the adverse employment action. See Byers v. Dallas Morning News, 209 F. 3d 419, 424 (5th Cir. 2000). Plaintiff first asserted a claim pursuant to section 1981 in his first Amended Complaint on August 20, 2018 [Dkt. 11 at 1]. Therefore, any allegations concerning race discrimination pre-dating August 20, 2016 are barred by the statute of limitations.

Plaintiff makes numerous allegations that his resignation was “reconsidered,” as an aside, other courts have held that an employer has no duty to reinstate an employee once he voluntarily resigns. Pownall, 63 Fed. App'x at 823 (“[O]nce [plaintiff]’s voluntarily resignation took effect, she had no right to revoke it, and the [defendant] had no duty to reinstate her.”); MacLean v. City of St. Petersburg, 194 F. Supp. 2d 1290, 1303 (M.D. Fla. 2002) (granting summary judgment on employee’s FMLA retaliation claim where employee voluntarily resigned after she was approved for FMLA leave, finding that employer had complete discretion as to whether to accept her resignation or allow her to rescind it); Hammonds v. Hyundai Motor Mfg. Ala., LLC, No. 2:10-cv-103-TFM, 2011 WL 2580168, *4 (M.D. Ala. June 28, 2011)(“So long as the resignation was voluntary and not a result of coercion or duress, there is no constructive discharge and the failure to accept rescission of a voluntary resignation is not an adverse employment action.”).

To the extent Plaintiff claims that Accenture retaliated against him for exercising rights under the FMLA, such proscriptive claim also fails. See Meisinger v. Wal-Mart Assocs., Inc., No. 5:17CV103-JRG-CMC, 2018 WL 5726232, at *1 (E.D. Tex. Aug. 1, 2018) (identifying substantive violations of the FMLA as a “prescriptive claim” and retaliation for invoking FMLA rights as a “proscriptive claim”). To establish a retaliation claim under the FMLA, Plaintiff must prove that (1) [he] engaged in a statutorily protected activity; (2) [he] suffered an adverse employment decision; and (3) the decision was causally related to the protected activity. Hunt v. Rapides Healthcare Sys., LLC, 277 F.3d 757, 768 (5th Cir. 2001). Because Plaintiff did not give sufficient and/or timely notice to trigger entitlement to leave under the FMLA, he cannot prove he engaged in a statutorily protected activity (i.e. taking FMLA leave). SeeVoyles v. Lane Furniture Industries, Inc., No. 1:08cv55-SA-JAD, 2009 WL 2392142 (N.D. Miss. July 31, 2009). Therefore, any proscriptive claim for retaliation under the FMLA fails.

Nor would any claims potentially arising under the December 2016 events be barred either.

Plaintiff’s Response and Sur-Reply additionally assert claims for harassment, hostile work environment, and disparate treatment [Dkts. 77 at 20; 83 at 10, 13-14]. Such claims were not presented in Plaintiff’s Amended Complaint and therefore are not considered. See Cutrera v. Bd. of Supervisors, 429 F.3d 108, 113 (5th Cir. 2005) (“[A] claim that is not raised in the complaint, but, rather, is raised only in response to a motion for summary judgment is not properly before the Court.”).