JANIS GRAHAM JACK, District Judge.
On this day came on to be considered Defendant's Motion for Summary Judgment. (D.E. 25.) For the reasons stated herein, Defendant's Motion for Summary Judgment is GRANTED IN PART AND DENIED IN PART.
This Court has federal question jurisdiction over this action pursuant to 28 U.S.C. § 1331, as Plaintiff has brought claims under, inter alia, Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII") and the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621 et seq. ("ADEA"). The Court has supplemental jurisdiction, 28 U.S.C. § 1367, over Plaintiff's state law causes of action.
This is an employment discrimination and retaliation case brought by Plaintiff Josie Hernandez against her former employer, the City of Corpus Christi. The Court summarizes the relevant facts in this case as follows.
Plaintiff Josie Hernandez began her career with the Corpus Christi Police Department ("CCPD") in 1977, when she was sworn in and assumed her duties as a patrol officer. She was promoted to police lieutenant on December 7, 1993 and to captain on October 24, 2000. (D.E. 25-4; D.E. 30-2 at 1.) Plaintiff contends that she should have been promoted beyond the position of captain (namely, to the positions of commander, assistant chief, and police chief), but was passed over for numerous
In the CCPD, promotions to commander and assistant chief are addressed under the Collective Bargaining Agreement ("CBA") between the City of Corpus Christi and the Corpus Christi Police Officers' Association, which was in effect from August 1, 2006 to July 31, 2010. According to the CBA, Section 13, promotion to commander and assistant chief positions are exempt from the competitive examinations requirement and made by appointment by the police chief, at his discretion. For the position of police commander, the candidate must be a lieutenant or captain with two years of experience in that rank immediately prior to appointment, and have obtained a bachelor's degree within 48 months of the appointment. For the assistant chief position, the candidate must have four years of experience in the rank of lieutenant, captain, or commander immediately prior to appointment, and must have obtained a master's degree within 48 months of appointment. The assistant police chief and police commander positions are not positions to which an individual may formally apply. (D.E. 25-6 at 38-40; D.E. 30-13 at 1.)
Plaintiff specifies several instances in which other, allegedly less qualified individuals outside the protected class were promoted to commander and assistant chief positions over her. Most of these promotions occurred during the period in which Bryan Smith was Police Chief of CCPD (D.E. 25-5), and during the tenure of City Manager Angel Escobar.
(D.E. 21 at 2-3.) Plaintiff claims that she also experienced a hostile work environment after each promotional bypass, allegedly suffering "insubordination, alienation, exclusion from meetings," and other behaviors. (D.E. 21 at 6.) Believing that these promotional decisions were motivated by improper discriminatory reasons, Plaintiff filed an EEOC Charge of Discrimination against the City on September 16, 2008. In the EEOC Charge, Plaintiff asserted gender, national origin, and age discrimination (but did not specifically assert race discrimination). (D.E. 25-19; D.E. 25-20; D.E. 25-50; D.E. 25-61.)
Several months later, in June 2009, the City received several open records requests from members of the media. Specifically, on June 9, 2009, Mike Gibson of KIII-TV (the ABC affiliate based in Corpus Christi), requested "[a]ny and all information regarding complaints made by Josie Hernandez and Isaac Valencia." (D.E. 25-17; D.E. 25-18.)
After investigating Plaintiff's claims, the EEOC issued a Notice of Right to Sue and Dismissal on February 10, 2010, but made no finding of discrimination. (D.E. 25-60.) This lawsuit followed.
Plaintiff originally brought this action in the 214th Judicial District Court
Defendant's Motion for Summary Judgment argues that (1) Plaintiff's claims of race, age, gender, and national origin discrimination under Title VII, the ADEA, and the TCHRA should be dismissed both on procedural and substantive grounds; (2) Plaintiff's request for declaratory judgment should be denied because the City complied with applicable law when it released the EEOC charge and Plaintiff's birthdate, (3) Plaintiff's claims under 42 U.S.C. § 1981 and 1983 should be dismissed both on procedural and substantive grounds, and (4) Plaintiff's breach of contract claim should be dismissed on the merits. (D.E. 25.)
The Court briefly considers the applicable summary judgment standard, then turns to the various arguments that Defendant has raised in support of its motion for summary judgment.
Under Federal Rule of Civil Procedure 56, summary judgment is appropriate if "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). The substantive law identifies which facts are material. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Ellison v. Software Spectrum, Inc., 85 F.3d 187, 189 (5th Cir.1996). A
On summary judgment, "[t]he moving party has the burden of proving there is no genuine issue of material fact and that it is entitled to a judgment as a matter of law." Rivera v. Houston Indep. Sch. Dist., 349 F.3d 244, 246 (5th Cir.2003); see also Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If the moving party meets this burden, "the non-moving party must show that summary judgment is inappropriate by setting forth specific facts showing the existence of a genuine issue concerning every essential component of its case." Rivera, 349 F.3d at 247. The nonmovant's burden "is not satisfied with some metaphysical doubt as to the material facts, by conclusory allegations, by unsubstantiated assertions, or by only a scintilla of evidence." Willis v. Roche Biomedical Labs., Inc., 61 F.3d 313, 315 (5th Cir.1995); see also Brown v. Houston, 337 F.3d 539, 541 (5th Cir.2003) (stating that "improbable inferences and unsupported speculation are not sufficient to [avoid] summary judgment").
Summary judgment is not appropriate unless, viewing the evidence in the light most favorable to the non-moving party, no reasonable jury could return a verdict for that party. Rubinstein v. Admrs. of the Tulane Educ. Fund, 218 F.3d 392, 399 (5th Cir.2000).
Title VII makes it "an unlawful employment practice for an employer. . . to discharge . . . or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race . . . sex or national origin." 42 U.S.C. § 2000e-2(a)(1). The ADEA forbids "an employer. . . to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." 29 U.S.C. § 623(a)(1); see Roberson v. Alltel Info. Servs., 373 F.3d 647, 651 (5th Cir.2004). Similar to its federal counterparts, the Texas Commission on Human Rights Act ("TCHRA"), prohibits employer discrimination directed at the "terms, conditions, or privileges of employment" because of race, color, disability, religion, sex, national origin or age. Tex. Lab.Code § 21.051(1). "The [Texas] Legislature intended to correlate state law with federal law in employment discrimination cases when it enacted the TCHRA. In discrimination cases that have not been fully tried on the merits, [Texas courts] apply the burden-shifting analysis established by the United States Supreme Court [in McDonnell Douglas]." Wal-Mart Stores, Inc. v. Canchola, 121 S.W.3d 735, 739 (Tex. 2003) (citations omitted); see Shackelford v. Deloitte & Touche, LLP, 190 F.3d 398, 403 n. 2 (5th Cir.1999) ("[T]he law governing claims under the TCHRA and Title VII is identical," and the statutory bases are "functionally identical."). Indeed, one of the purposes of the Act is to "provide for the execution of the policies of Title VII of the Civil Rights Act of 1964 and its subsequent amendments." Tex. Lab.Code § 21.001. Thus, the Court interprets and considers Plaintiff's state and federal law claims together.
A Title VII plaintiff must exhaust administrative remedies by filing an administrative charge of discrimination with the EEOC within 300 days of learning of the unlawful conduct. 42 U.S.C. § 2000e-5(e)(1); National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 109, 113-14, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002); Huckabay v. Moore, 142 F.3d 233, 238 (5th Cir.1998). Filing a timely charge with the EEOC "is a precondition to filing suit in district court." Taylor v. Books A Million, Inc., 296 F.3d 376, 379 (5th Cir.2002). "The scope of a Title VII complaint is limited to the scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination." Thomas v. Texas Dept. of Criminal Justice, 220 F.3d 389, 395 (5th Cir.2000). Similarly, the TCHRA "requires a complainant to first exhaust his administrative remedies before filing a civil action." Lueck v. State, 325 S.W.3d 752, 761 (Tex. App.-Austin 2010). This administrative review process begins when a complainant files a complaint with the Texas Workforce Commission civil rights division. Tex. Lab.Code § 21.201; Waffle House, Inc. v. Williams, 313 S.W.3d 796, 804 (Tex.2010). Under Texas law, the complainant must bring his administrative claim within 180 days of the date that the alleged unlawful practice occurred. Tex. Lab.Code § 21.202(a). Once that occurs, a Plaintiff must bring suit within two years of filing the administrative complaint. Id. § 21.256; Williams, 313 S.W.3d at 804. Courts have generally considered the filing of a charge with the EEOC to satisfy state administrative exhaustion requirements as well, in light of worksharing agreements between the agencies and the desire to avoid duplication of efforts. See, e.g., Vielma v. Eureka Co., 218 F.3d 458, 462-63
Defendant argues that Plaintiff's discrimination claims must be dismissed both because she has failed to exhaust her administrative remedies, and because they lack merit. The Court considers the procedural aspects of the claim first.
Defendant argues that Plaintiff may not assert certain claims due to her failure to exhaust administrative remedies with respect to those claims. Those claims are (1) any discriminatory acts that occurred before November 20, 2007; (2) race discrimination; (3) constructive discharge; and (4) the promotion of Commander Moseley to Acting Police Chief on August 17, 2009. These claims either fall outside of the 300-day period for filing, or were not alleged in the EEOC Charge, according to Defendant. (D.E. 25 at 9-10; D.E. 40 at 2-3.) Plaintiff responds first that the Lilly Ledbetter Fair Pay Act of 2009 amends Title VII and the ADEA as to limitations, such that the limitations period restarts with every wage, benefit, or other compensation that "resulted in whole or in part" from a discriminatory decision or practice. Thus, each paycheck and retirement check Plaintiff received that did not include the higher compensation afforded the City's promoted officials restarts the statutory period. (D.E. 30 at 7-8; D.E. 44 at 16-17.) Plaintiff also contends that she did in fact allege race discrimination, at least with respect to an Employment Discrimination Intake Questionnaire filed with the Corpus Christi Human Relations Commissions, and claimed constructive discharge when she stated in her July 24, 2009 letter to EEOC Investigator John Ahlstrom, "[h]ad the City not discriminated against me, I would still be working there." (D.E. 30 at 8.) Finally, Plaintiff contends that her EEOC Charge encompasses Moseley's promotion because she alleged systematic promotions to "high level job[s]," the scope of her Title VII suit could extend as far as the scope of the EEOC investigation that could reasonably grow out of the administrative charge, and the claim is part of a pattern of discrimination. (D.E. 30 at 8-9.) The Court considers each in turn.
First, Defendant is correct that claims occurring outside the 300 day period cannot form the basis of a discrimination claim. 42 U.S.C. § 2000e-5(e)(1); National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 109, 113-14, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002); Huckabay v. Moore, 142 F.3d 233, 238 (5th Cir.1998). As Plaintiff filed her EEOC Charge on September 16, 2008, the 300-day period extends back to November 20, 2007. Any events occurring before this time are barred. Thus, Plaintiff cannot state a claim for discrimination based upon the April 2007 promotion of Captain Moseley to commander, nor any other events that preceded November 20, 2007.
Plaintiff's reliance upon the Lilly Ledbetter Fair Pay Act of 2009 (the "Act" or "FPA") is misplaced.
In light of the above, the Court concludes that Plaintiff's time-barred claims are not saved by the Lilly Ledbetter Fair Pay Act, and that all claims that are based upon discrete acts occurring before November 20, 2007 are time-barred. Thus, the April 16, 2007 promotion of John Moseley to Commander is not actionable, but Plaintiff's claims with respect to the other promotions at issue may proceed.
Second, Defendant is also correct that Plaintiff did not allege race discrimination in her EEOC Charge. (D.E. 25-19; D.E. 25-20; D.E. 25-50; D.E. 25-61.) In response, Plaintiff references a complaint she filed with the Employment Discrimination Intake Questionnaire filed with the Corpus Christi Human Relations Commissions, which is of very poor quality and does not provide a date on which it was filed, or any other relevant information. (D.E. 30-8.)
Nevertheless, the fact that Plaintiff did not specifically reference race discrimination in her EEOC charge does not preclude her race-based claim. As noted above, "[t]he scope of a Title VII complaint is limited to the scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination." Thomas, 220 F.3d at 395. Thus, a court may have jurisdiction over a plaintiff's "race discrimination claim only if it is sufficiently related to [her] national origin discrimination cause of action that it reasonably would have fallen within the scope of the EEOC investigation into [the plaintiff's] allegation of national origin discrimination." Magana v. Tarrant/Dallas Printing, Inc., 1998 WL 548686, at *2 (N.D.Tex. Aug. 21, 1998). The Fifth Circuit has explained, "[i]n some contexts,
Defendant urges dismissal of Plaintiff's constructive discharge claim because it is unexhausted. However, the Court notes that Plaintiff amended her charge on July 24, 2009, in a letter to EEOC Investigator Ahlstrom. In that amendment she states, "I believe the City has also engaged in the conduct to chill my right to continue to investigate past and current discriminatory practices in the police department. Had the City not discriminated against me, I would still be working there." (D.E. 30-9 at 2). Defendant argues, "[a] cursory statement by Plaintiff that she would still be working for the City had it not discriminated against her can not reasonably be interpreted to be an assertion of a constructive discharge claim," and notes that the EEOC investigation did not include any constructive discharge conduct. (D.E. 40 at 6.)
The Fifth Circuit has explained that EEOC charges are to be accorded "liberal construction," "especially those by unlawyered complainants." Fellows v. Universal Restaurants, Inc., 701 F.2d 447, 452 (5th Cir.1983). "[F]or the most part, the desired liberality is achieved by application of the rule that courts will look beyond the scope of the charge's language to the scope of the [administrative] investigation which can reasonably be expected to grow out of the charge." Pacheco v. Mineta, 448 F.3d 783, 789 n. 9 (5th Cir.2006). Nevertheless, the Court need not decide this issue on exhaustion of remedies grounds because Plaintiff's constructive discharge claim fails on the merits, as discussed herein. The Court therefore assumes, without deciding, that Plaintiff's constructive discharge claim has been sufficiently exhausted at the administrative level.
Finally, it is true that Plaintiff did not specifically reference in her EEOC Charge Commander Moseley's promotion to Acting Police Chief on August 17, 2009. Nevertheless, the Court again concludes
In sum, Plaintiff cannot bring claims based upon conduct occurring before November 17, 2007 (namely, the April 2007 promotion of Captain Moseley to commander). All other claims are sufficiently exhausted and may be evaluated on their merits. The Court now turns to this analysis.
Defendant first argues that Plaintiff cannot make out a prima facie case of discrimination for failure to promote. A prima facie claim of failure to promote requires a plaintiff to show that: "(1) she was within a protected class; (2) she was qualified for the position sought; (3) she was not promoted; and (4) the position she sought was filled by someone outside the protected class." Blow v. City of San Antonio, 236 F.3d 293, 296 (5th Cir.2001).
Defendant contends that Plaintiff cannot make out this prima facie case because, with the exception of the 2007 commander position, she cannot demonstrate that she "sought any position about which she complains," or with respect to temporary assignments, that "there was a position to which she was denied." Finally, with respect to assignments filled by those of the same national origin, race, sex, or those of the same age or older, Plaintiff cannot demonstrate that someone outside the protected class was selected. Specifically, Defendant notes that John Moseley, Mike Walsh, and David Cook are older than Plaintiff, and Heidi Frese is both Hispanic and female. (D.E. 25 at 11-12.) Plaintiff responds that no formal application was allowed for these positions, that the temporary assignment was in fact a formal position, and that in each case someone outside at least one protected class was selected. (D.E. 30 at 9-11.)
As an initial matter, the Court rejects Defendant's argument that Plaintiff cannot show that she "sought" any position. Defendant itself states that "[t]he positions of Assistant Chief of Police and Police Commander are not positions for which an individual may apply, and applications are
Similarly, the Court rejects the contention that, with respect to the temporary positions, "there was a position to which she was denied." (D.E. 25 at 12.) The positions, while "temporary" or "acting," were positions nonetheless, with higher pay, benefits, prestige, and responsibilities. As Plaintiff states in her affidavit, "[c]ommon knowledge and experience is that the [temporary promotion] experience entails a raise in pay throughout the time the person occupies the position. The added benefits are the experience and prestige in opportunity, because it adds to a resume." (D.E. 30-3 at 12.) The fact that the positions may not have been permanent does not alter the outcome. Plaintiff may certainly state a claim that she was not promoted to that temporary "higher position" due to discriminatory reasons.
Finally, the Court rejects Defendant's argument that Plaintiff cannot show that someone outside the protected class was selected for the positions at issue. Plaintiff here claims gender, age, race, and national origin discrimination. Plaintiff's claims could be defeated on this ground if all those selected in place of Plaintiff were also female, Mexican-American, Hispanic, and of the same age or older than Plaintiff. This is not the case. For example, the fact that John Moseley and Mike Walsh were older than Plaintiff may negate her age discrimination claim with respect to those positions, but certainly not gender, national origin, or race discrimination. The same is true of the other positions. Thus, as to the position filled by Heidi Frese, a female Hispanic, Plaintiff may maintain her claim of age and national origin discrimination, but not gender or racial discrimination. The Court understands Plaintiff only to state the relevant types of discrimination in the case of each promotion at issue. Plaintiff has satisfied her prima facie burden.
Defendant next contends that, even assuming Plaintiff may make out a prima facie case, Defendant can demonstrate legitimate, non-discriminatory reasons for its promotion decisions. In support, Defendant provides affidavits from Chief Smith and City Manager Escobar, detailing their reasons for the decisions. (D.E. 25 at 12; D.E. 25-47; D.E. 25-48.) Plaintiff responds that Defendant's evidence of a legitimate reason is insufficient, and supplies evidence of pretext, in the form of her own affidavit, as well as the affidavits of certain former colleagues. (D.E. 30 at 11-14.) Defendant has in turn responded with another affidavit from Chief Smith addressing Plaintiff's claims. (D.E. 40-7.)
Mr. Smith's affidavit discusses his selection procedures for the promotions at issue. He states that in April 2007 he conducted a lengthy telephone interview with Plaintiff, but she "seemed disinterested in the concept of community policing," (a concept Smith endorsed) that she "failed to provide committed answers to the questions that [he] posed to her," and that she "seemed unsure about why she was the best candidate for the position and was hesitant about giving assignment preferences." Smith thus concluded that Plaintiff "was not the best qualified captain for the promotion," and instead believed Moseley to be the most qualified. (D.E. 25-47.) Smith provides similar justifications for the other promotion decisions at issue in this case, and outlines the educational and professional experience of each of the selected candidates. (D.E. 25-47;
In her own affidavit, Plaintiff responds that Smith discriminated against her when considering promotions.
Plaintiff also generally discusses her qualifications. (D.E. 30-2 at 9; D.E. 30-5.) Specifically, Plaintiff states that she had thirty-one years of experience with the CCPD, served as the highest ranking officer in a command position during the night shift for two years, and had relevant experience in multiple CCPD divisions over the course of her career. Plaintiff also had a bachelor's degree. She makes the case that she was substantially more qualified than any of the individuals actually chosen for the promotions, in terms of experience and other qualifications. (D.E. 30-5; see also D.E. 44-3; 44-4 (discussing duties of officers at night).) Plaintiff also compares her qualifications to those of Frese, Walsh, and Smith, some of whom had fewer years on the job, or less well-rounded experience. (D.E. 44 at 7.) Plaintiff also continues to allege that promotions were done according to a "tap on the shoulder" procedure, whereby the chosen individual was not required to submit an application and others were not seriously considered. (D.E. 44 at 9.)
Plaintiff discusses her interview with Smith for the position ultimately given to Mr. Moseley. She portrays it as lasting "no more than ten minutes with Smith doing most of the talking while eating. He asked nothing about community policing. In fact, Smith and I never had a conversation about community policing . . . . Smith asked me why I wanted the promotion, and I responded that I had the experience, knowledge, skills, and abilities to perform
In his responsive affidavit, Smith continues to refute several of Plaintiff's claims, related to her responsibilities, performance on the job, community policing philosophy, selections to the FBI National Academy, and her perception of the April 2007 interview. (D.E. 40-7.)
Summary judgment in employment discrimination cases is rarely appropriate. In determining whether a plaintiff has provided sufficient evidence of pretext to defeat summary judgment, "a court should consider the strength of the plaintiff's prima facie case, the probative value of the proof that the employer's explanation is false, and any other evidence that supports the employer's case." Crawford v. Formosa Plastics Corp., 234 F.3d 899, 902 (5th Cir.2000). "In rare circumstances, a defendant may be entitled to summary judgment `if the record conclusively reveal[s] some other, nondiscriminatory reason for the [adverse] decision, or if the plaintiff create[s] only a weak issue of fact as to whether the employer's reason was untrue and there [is] abundant and uncontroverted independent evidence that no discrimination has occurred.'" Acker v. Deboer, Inc., 429 F.Supp.2d 828, 842-43 (N.D.Tex.2006) (citing Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 148, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000)). Thus, "once an employment discrimination case devolves into nebulous questions of motivation and intent, summary judgment upon the claims is rarely appropriate." Turco v. Hoechst Celanese Chemical Group, Inc., 906 F.Supp. 1120, 1126 (S.D.Tex.1995). Here, Plaintiff has set out evidence that she was equally or in some cases more qualified than the other applicants,
There is sufficient evidence of pretext to survive summary judgment. Plaintiff's evidence establishes a genuine issue of material fact as to whether the promotion decisions were motivated by discrimination (be it age, gender, national origin, or racial discrimination).
In the end, Plaintiff's claims of discrimination represent a disputed factual issue that must be resolved by a jury, not the Court on summary judgment.
A plaintiff may establish a Title VII violation based on discrimination creating a hostile work environment. To establish a hostile working environment claim, a plaintiff must prove: "(1) she belongs to a protected group; (2) she was subjected to unwelcome harassment; (3) the harassment complained of was based on [gender, race, age, or national origin]; (4) the harassment complained of affected a term, condition, or privilege of employment; (5) the employer knew or should have known of the harassment in question and failed to take prompt remedial action." Ramsey v. Henderson, 286 F.3d 264, 268 (5th Cir.2002); see also Celestine v. Petroleos de Venezuella SA, 266 F.3d 343, 353 (5th Cir.2001). "For harassment on the basis of race to affect a term, condition, or privilege of employment, as required to support a hostile work environment claim under Title VII, it must be `sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.' " Ramsey, 286 F.3d at 268 (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993)). The Supreme Court has explained that "whether an environment is `hostile' or `abusive' can be determined only by looking at all the circumstances. These may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening
Defendant contends that there is no evidence whatsoever that Plaintiff suffered any workplace harassment of any kind, and has made only conclusory statements to this effect. (D.E. 25 at 15.) Plaintiff responds with an affidavit describing what she states was "an environment burdened with systemic and systematic discrimination, and intentional and retaliatory discrimination that led to her constructive discharge." Thus, there is a fact issue on this as well, Plaintiff concludes. (D.E. 30 at 14-15.)
The law in this Circuit is clear that Plaintiff's conclusory statements in her own affidavit are not competent summary judgment evidence and do not create a genuine issue of material fact. See Grizzle v. Travelers Health Network, Inc., 14 F.3d 261, 268 (5th Cir.1994) ("The only evidence supporting [plaintiff's] claim regarding her second complaint ... was [plaintiff's] own self-serving generalized testimony stating her subjective belief that discrimination occurred. Such is simply insufficient to support a jury verdict in plaintiff's favor."); Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir.1994) ("Needless to say, unsubstantiated assertions are not competent summary judgment evidence."). Moreover, in the hostile work environment context, the affidavit only makes a vague reference to "racial slurs and derogatory treatment of women." (D.E. 30-3 at 10.) While Plaintiff has presented the affidavits of two former colleagues, Rodolfo Caceres and Wayne Tisdale, in which the affiants relate certain instances in which Smith is claimed to have made derogatory remarks towards Mexican Americans, they do not claim that Plaintiff heard these statements. (D.E. 30-6; D.E. 30-7.)
Plaintiff cannot make out a prima facie case because she has not presented sufficient summary judgment evidence that any conduct at issue was "sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.'" Ramsey, 286 F.3d at 268 (quoting Harris, 510 U.S. at 21, 114 S.Ct. 367). As such, Plaintiff's hostile work environment claim must be dismissed.
To state a prima facie disparate treatment claim, Plaintiff must provide evidence that she "(1) is a member of a protected class; (2) was qualified for her position; (3) was subject to an adverse employment action; and (4) ... shows that others similarly situated were treated more favorably." Okoye v. Univ. of Texas Houston Health Science Ctr., 245 F.3d 507, 512-13 (5th Cir.2001); see also Willis v. Coca Cola Enterprises, Inc., 445 F.3d 413, 420 (5th Cir.2006). In contrast, to state a prima facie disparate impact claim, a plaintiff must show: "(1) an identifiable, facially neutral personnel policy or practice; (2) a disparate effect on members of a protected class; and (3) a causal connection between the two." McClain v. Lufkin Industries, Inc., 519 F.3d 264, 275-76 (5th Cir.2008) (citing Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 994, 108 S.Ct. 2777, 101 L.Ed.2d 827 (1988)). A defendant may "rebut a prima facie case of disparate impact by demonstrating that a challenged practice is a business necessity." Crawford v. U.S. Dep't of Homeland Sec., 245 Fed.Appx. 369, 379 (5th Cir.2007)
Defendant states that it is entitled to summary judgment on Plaintiff's disparate treatment claim because "there is no evidence that [Plaintiff] suffered any adverse employment action or that similarly situated others were treated more favorably than she was treated." (D.E. 25 at 15.) Regarding the disparate impact claim, Defendant argues only that Plaintiff cannot "establish the required elements," and thus summary judgment is warranted. (D.E. 25 at 16.) Plaintiff disagrees on both counts. (D.E. 30 at 15-16.)
With respect to disparate treatment, the Court can quickly reject Defendant's argument that Plaintiff did not suffer any "adverse employment action." It is well established that "the denial of a promotion is an actionable adverse employment action." See, e.g., Alvarado v. Texas Rangers, 492 F.3d 605, 612 (5th Cir.2007); see also Wojciechowski v. Nat'l Oilwell Varco, L.P., 763 F.Supp.2d 832, 855 (S.D.Tex.2011) ("In the context of discrimination claims [as opposed to retaliation], adverse employment reactions are defined by the Fifth Circuit as `ultimate employment decisions,' such as `hiring, granting leave, discharging, promoting and compensating.'"). Plaintiff also has evidence that she "was treated less favorably than was a similarly situated employee outside the protected class." Toronka v. Continental Airlines, Inc., 411 Fed.Appx. 719, 723 (5th Cir.2011); see also, e.g., Lyles v. Texas Alcohol Beverage Comm'n, 379 Fed.Appx. 380, 383 (5th Cir.2010) ("[I]n the case of a disparate treatment claim, [Plaintiff must show] that others similarly situated, but outside the protected class, were treated more favorably."). As discussed above, Plaintiff has demonstrated that others within the CCPD of the same or lesser rank were treated more favorably (through their promotions) than was Plaintiff. These individuals had similar, or in some cases lesser, credentials and qualifications. This element of the prima facie case is certainly established. As Defendant only moves for summary judgment based upon the third and fourth elements of the prima facie case, and the Court finds these elements satisfied, Plaintiff's disparate treatment claim may proceed.
With respect to disparate impact, however, the Court finds that Plaintiff has not met the required elements of the prima facie case. The Supreme Court has explained that "a prima facie case of disparate-impact liability [is] essentially a threshold showing of a significant statistical disparity and nothing more." Ricci v. DeStefano, 557 U.S. 557, 129 S.Ct. 2658, 2678, 174 L.Ed.2d 490 (2009). Plaintiff has identified (1) a facially neutral policy of promotions within the CCPD and (2) a disparate impact upon Mexican-Americans (none were promoted above captain) in Plaintiff's last two years on the job. The problem, however, is that Plaintiff has not presented any evidence of causation. Generally, a plaintiff must "establish causation by offering statistical evidence to show
To recapitulate, the Court finds that Plaintiff has defeated Defendant's motion for summary judgment as to her claim of disparate treatment, but not as to her claim of disparate impact. Only the disparate treatment claim may proceed.
Defendant argues that Plaintiff's constructive discharge claim must fail on the merits because she cannot demonstrate that she was "forced" to retire, or that "working conditions were so intolerable that a reasonable employee would be compelled to resign." (D.E. 25 at 16-17.) In her affidavit, Plaintiff responds that "[t]he City's failure to provide a workplace free of discrimination made it impossible for me to continue law enforcement work. In fact, the daily risks of law enforcement coupled with the racial, gender, and age based discrimination by Smith against me made it impossible to continue working where, every day, my life was on the line and he held the weapon to destroy my career, which he eventually did." (D.E. 30-2 at 8.)
As the Fifth Circuit has explained, "[a] constructive discharge occurs when the employer makes working conditions so intolerable that a reasonable employee would feel compelled to resign." Hunt v. Rapides Healthcare Sys., LLC, 277 F.3d 757, 771 (5th Cir.2001); Ward v. Bechtel Corp., 102 F.3d 199, 202 (5th Cir. 1997). "Courts consider a variety of factors, including the following: (1) demotion; (2) reduction in salary; (3) reduction in job responsibilities; (4) reassignment to menial or degrading work; (5) badgering, harassment, or humiliation by the employer calculated to encourage the employee's resignation; or (6) offers of early retirement that would make the employee worse off whether the offer was accepted or not. The test is objective. The question is not whether [the plaintiff] felt compelled to resign, but whether a reasonable employee in her situation would have felt so compelled." Hunt, 277 F.3d at 771-72.
The Court understands Plaintiff's constructive discharge claim to be based upon Defendant's repeated failure to
To state a retaliation claim, "[plaintiff] must first demonstrate a prima facie case .... The elements of her prima facie evidentiary showing are 1) that she engaged in a protected activity; 2) that an adverse employment action occurred; and 3) that a causal link existed between the protected activity and the adverse action. If [plaintiff] successfully establishes her prima facie case, the burden then shifts to the [defendant] to state a legitimate non-retaliatory reason for its action. At this point, any presumption of retaliation drops from the case, and [plaintiff] must show that the [defendant's] stated reason is actually a pretext for retaliation." Septimus v. Univ. of Houston, 399 F.3d 601, 610-11 (5th Cir.2005).
Here, Plaintiff bases her retaliation claim upon the City's release of her EEOC filings, along with her date of birth, to the media. Defendant argues that this cannot establish a retaliation claim because (1) the release of Plaintiff's EEOC filings, or her birth date, does not constitute an adverse personnel action, and (2) Plaintiff cannot establish a causal link between any protected activity and any materially adverse event. (D.E. 25 at 17-18; D.E. 40 at 8-9.) Defendant has submitted an affidavit from Ronald Bounds, an attorney employed by Corpus Christi. He states, "[a]fter reviewing the request and the requested information, it was my good faith belief that the Notice of Charge of Discrimination ... issued to the City relating to Ms. Hernandez and the Charge of Discrimination ... made by Ms. Hernandez were responsive to the open records request and were neither confidential by law nor protected from disclosure by any exception in the Texas Public Information Act...." (D.E. 25-51 at 1-2.) He also states, "[m]y decisions to release the above-referenced Notice of Charge of Discrimination and Charge of Discrimination were not made to retaliate against Ms. Hernandez for filing a discrimination charge against the City. My decisions were based on my good faith belief that the [documents] were responsive to the open records requests...." (D.E. 25-51 at 3.) Plaintiff responds to this affidavit with her own statement that "[c]ommon sense was all Bounds needed to not release my private information. For the same reason he gave me, because of possible litigation, he did not have to release it to the media. His conduct demonstrates that the City retaliates when an employee files a complaint." (D.E. 30-3 at 11.)
As an initial matter, the Court considers whether the release of Plaintiff's EEOC charge (along with her birth date)
Even if Defendant's release of Plaintiff's EEOC Charge (including her date of birth) after her retirement could constitute an adverse employment action, the Court finds that summary judgment is warranted because Plaintiff cannot satisfy the causation element of her claim. To establish the causation element of a retaliation claim under Title VII, a plaintiff must present either "direct evidence of retaliation" or "circumstantial evidence creating a rebuttable presumption of retaliation." Fabela v. Socorro Indep. Sch. Dist., 329 F.3d 409, 414-15 (5th Cir.2003). Plaintiff has neither. While Plaintiff has presented an affidavit with conclusory claims that she felt the release to be retaliatory in nature, it is well established that "a plaintiff's testimony may establish retaliation, [but] such testimony is only sufficient if it proves the fact of intentional retaliation without inference or presumption." Washburn v. Harvey, 504 F.3d 505, 510 (5th Cir.2007). Plaintiff provides no specifics or direct evidence that the release of the EEOC charge was meant to be retaliatory.
As Plaintiff has not presented sufficient evidence of retaliation based upon the release of her EEOC charge to the media, summary judgment must be granted with respect to this claim.
Plaintiff seeks a declaratory judgment under the Texas Declaratory Judgments Act that the City violated her privacy interest in her date of birth by releasing it to the media, and such disclosure was not
As an initial matter, the Texas Declaratory Judgment Act is inapplicable in this case because subject matter jurisdiction is premised upon federal question jurisdiction, 28 U.S.C. § 1331. Self-Insurance Institute of America, Inc. v. Korioth, 53 F.3d 694, 697 (5th Cir.1995) ("[T]he Texas DJA is inapplicable. Jurisdiction in this case is under 28 U.S.C.A. § 1331 ..., not diversity where state law applies."). As one court has explained, "[t]he Court cannot award relief pursuant to the Texas Declaratory Judgment Act because declaratory judgment is procedural, not substantive, and federal courts apply their own procedural rules." Rhodes v. Prince, 2006 WL 954023, at *4 (N.D.Tex. Apr. 11, 2006). The Court, however, will interpret this claim as being brought under the Declaratory Judgment Act, 28 U.S.C. § 2201.
The Texas Supreme Court recently addressed the issue of disclosure of public employees' dates of birth in Texas Comptroller of Public Accounts v. Attorney General of Texas, 354 S.W.3d 336, 2010 WL 4910163 (Tex. Dec. 3, 2010). In that case, the Dallas Morning News invoked the Texas Public Information Act, seeking a copy of the state Comptroller's payroll database for state employees. The Comptroller responded with the full name, age, race, sex, salary, agency, job description, work address, date of initial employment, pay rate, and work hours for each employee. The Comptroller, however, withheld dates of birth pursuant to Government Code Section 552.101. 354 S.W.3d at 337-38, 2010 WL 4910163, at *1. The Texas Supreme Court addressed whether the Public Information Act requires redaction of birthdates. The court held, "the state employees' privacy interest substantially outweighs the negligible public interest in disclosure here. Consistent with the federal courts and those in other states, we conclude that
Nevertheless, Texas Comptroller of Public Accounts v. Attorney General of Texas was decided on December 3, 2010, while the disclosure at issue in this case occurred in June 2009, without the benefit of this decision. The City cannot be held responsible for failing to anticipate how the Texas Supreme Court would come out on this issue. While Plaintiff argues that even before the decision, the City "had
Because Plaintiff has not shown that Defendant violated her privacy interest in her date of birth by publicizing it to the media, or that such disclosure was not authorized under state or federal law, the Court cannot grant her declaratory judgment request. This request must be dismissed.
Defendant raises several procedural and substantive arguments with respect to Plaintiff's Section 1981 and 1983 claims. First, it contends that such claims relating to conduct occurring before December 30, 2008 are barred by the applicable two-year statute of limitations. Second, Defendant argues that Section 1981 does not provide a cause of action against local government entities. Third, Defendant argues that these claims fail on the merits, as Plaintiff cannot make out a claim of race discrimination, nor a violation of her due process and equal protection rights. Finally, Defendant states that Plaintiff cannot establish that the City "has a custom, policy, or practice of depriving employees of their rights to due process or equal protection," as is required for a Section 1983 claim. (D.E. 25 at 19-20; see also D.E. 40 at 7-8.) Plaintiff responds that her claims are timely for the same reasons as addressed with regards to Title VII, that Section 1981 claims are "encompassed by section 1983 claims, and both are analyzed under section 1983," that there is evidence of racial discrimination (as discussed with respect to Title VII), and that she does not claim a property interest. (D.E. 30 at 20-22.) As to the merits, Plaintiff argues that the City "has a custom, policy or practice of discouraging females from reporting discrimination in the workplace and treating females disrespectfully and/or disparagingly based on their gender," and that it "has a custom, policy, or practice of failing to properly investigate allegations of discrimination." (D.E. 44 at 17-18.) She also argues that the City "fails to properly discipline perpetrators of misconduct offensive to females and perpetrators of discrimination," and that it "ratified [Smith's] conduct as police chief and allows him unbridled authority to continue to the present." (D.E. 44 at 18-19.)
As an initial matter, Defendant is correct that that "Section 1981 does not provide a remedial cause of action against local government entities and local government officials in their official capacities." Patel v. Midland Mem. Hosp. and Med. Ctr., 298 F.3d 333, 341 n. 16 (5th Cir.2002) (citing Oden v. Oktibbeha Cty., 246 F.3d 458, 463 (5th Cir.2001)); Coronado v. San Patricio Cty., 2011 WL 923458, at *4 (S.D.Tex. Mar. 15, 2011) ("The Fifth Circuit has held, however, that Section 1983 remains the exclusive federal remedy against state actors for violations of Section 1981."). Such claims, however, may be asserted under Section 1983. Coronado,
The Court next addresses the issue of the City's liability under Section 1983. (D.E. 25 at 20.) A municipality is a "person" subject to suit under Section 1983. See Monell v. New York City Dep't of Soc. Servs., 436 U.S. 658, 690, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). A local government entity may be sued "if it is alleged to have caused a constitutional tort through `a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers. Alternatively, municipal liability may attach where the constitutional deprivation is pursuant to a governmental custom, even if such custom has not received formal approval." Zarnow v. City of Wichita Falls, Tex., 614 F.3d 161, 166 (5th Cir. 2010) (citing City of St. Louis v. Praprotnik, 485 U.S. 112, 121, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988); Monell). "[M]unicipal liability under Section 1983 requires proof of three elements: [1] a policymaker; [2] an official policy; and [3] a violation of constitutional rights whose moving force is the policy or custom." Id. Thus, "[t]he elements of the Monell test exist to prevent a collapse of the municipal liability inquiry into a respondeat superior analysis. A municipality may not be subject to liability merely for employing a tortfeasor. Municipal liability requires deliberate action attributable to the municipality that is the direct cause of the alleged constitutional violation." Id. (citations omitted).
Assuming without deciding that Plaintiff can establish the existence of a "policymaker," such as Smith or Escobar, she has failed to demonstrate the existence of an "official policy," an essential element of a Section 1983 claim. The Fifth Circuit has defined the phrase "official policy" as either:
Webster v. City of Houston, 735 F.2d 838, 841 (5th Cir.1984); see Evans v. City of Houston, 246 F.3d 344, 358 (5th Cir.2001) (citing Brown v. Bryan County, 219 F.3d 450, 457 (5th Cir.2000)); see also Juarez v. Brownsville Indep. Sch. Dist., 2010 WL 1667788, at *9-10 (S.D.Tex. Apr. 23, 2010) (citing Webster).
Here, Plaintiff does not provide any evidence of an "official policy" under either definition. It is reasonably clear that Plaintiff does not rely upon the first definition, as there is no policy statement officially "adopted and promulgated by the municipality's lawmaking officers or by an official to whom the lawmakers have delegated policy-making authority." Webster,
As to the second definition, Plaintiff has failed to provide evidence of a "persistent, widespread practice" of discrimination. Webster, 735 F.2d at 841. She has provided her own affidavit, stating her belief as to the existence of an official policy, and in her Surreply has made some additional attempts to demonstrate an official policy. (D.E. 44 at 18.) Such evidence of an official policy is rarely sufficient to survive summary judgment. For example, in Erves v. City of Dallas, 2004 WL 904122, at *4 (N.D.Tex. Apr. 27, 2004), the court considered a Section 1983 race discrimination claim brought by the plaintiff, an African-American police officer with the City of Dallas. The court found that summary judgment on this claim was appropriate, explaining, "[t]he only `policy' alleged by Erves, absent an officially documented policy or custom, is that Dallas `has a longstanding (unwritten, but well recognized) practice of custom of discriminating and retaliating against minority officers.'... [T]he record before the Court documents no such examples of `persistent and widespread' violations; indeed, the evidence contains no documentary examples of racial discrimination, harassment, discriminatory intent, or retaliation against particular individuals. Erves' summary judgment evidence suggests only that Erves and three affiants believe that the Dallas Police Department is a racist entity. Such evidence simply does not suffice to establish a persistent, widespread practice...." 2004 WL 904122, at *4; see also Okon v. Harris County Hosp. Dist., 2010 WL 3069805, at *12 (S.D.Tex. Aug. 4, 2010) (dismissing Section 1983 race discrimination claim because "there is simply no record evidence that it was a persistent, widespread practice that was so common and well settled as to constitute a custom that fairly represents Defendant's policy."); Bluitt v. Houston Indep. Sch. Dist., 236 F.Supp.2d 703, 724 (S.D.Tex.2002) (dismissing Section 1983 claim because the plaintiff presented no evidence that the defendant "has an official policy authorizing... discrimination," or that "it is the well-established custom of [defendant], its principals, or other employees to engage in such practices."). In her summary judgment response, Plaintiff focuses mainly upon the promotion decisions of former Chief of Police Smith and City Manager
Finally, Defendant seeks summary judgment as to Plaintiff's breach of contract claim, on the basis that the City did not enter into any contract with Plaintiff. (D.E. 25 at 21.) In response, Plaintiff contends that the City has breached its collective bargaining agreement by discriminating against her. (D.E. 30 at 22.)
In Texas, the essential elements of a breach of contract claim are: "(1) the existence of a valid contract; (2) performance or tendered performance by the plaintiff; (3) breach of the contract by the defendant; (4) damages sustained as a result." Winchek v. Am. Exp. Travel Related Servs. Co., Inc., 232 S.W.3d 197, 202 (Tex.App.-Houston [1 Dist.] 2007). Suits against governmental entities for breach of contract are permitted when that entity is alleged to have failed to fulfill contract terms. Tex. Local Gov.Code § 271.152 ("A local governmental entity that is authorized by statute or the constitution to enter into a contract and that enters into a contract subject to this subchapter waives sovereign immunity to suit for the purpose of adjudicating a claim for breach of the contract, subject to the terms and conditions of this subchapter.").
Here, Plaintiff's breach of contract claim in the First Amended Complaint appears to be based upon an individual contract between the City and Plaintiff, as well as a collective bargaining agreement between the City and the union, including Plaintiff. Plaintiff claims that the City, inter alia, agreed not to discriminate in these contracts, but breached these agreements by failing to promote Plaintiff. (D.E. 21 at 38-39.) In her Response, however, Plaintiff references only the collective bargaining agreement. (D.E. 30 at 22 ("By discriminating
In contrast, there is no dispute that there was a valid collective bargaining agreement between the City and the Corpus Christi Police Officer's Association ("CBA") at all relevant times (the agreement expired on July 31, 2010). (D.E. 25-6.) Even though the contract was not directly between Hernandez and the City, Hernandez was a third party beneficiary under the collective bargaining agreement. The Texas Supreme Court in City of Houston v. Williams recently addressed an individual firefighter's standing under a collective bargaining agreement with a governmental entity, and concluded: "[f]irefighters have standing as third-party beneficiaries under the [collective bargaining agreement (CBA) ].... [I]t was negotiated by the Union with the clear intent to benefit the Firefighters. Significantly, collective bargaining agreements are recognized as a type of third-party beneficiary contract." City of Houston v. Williams, 353 S.W.3d 128, 148, 2011 WL 923980, at *16 (Tex. Mar. 18, 2011). Thus, the court concluded that "[f]irefighters have standing as third-party beneficiaries to enforce the CBA." Id. The same reasoning applies here. Simply because Hernandez was not personally a party to the CBA does not mean that she cannot bring a breach of contract claim.
The CBA, Article 13, outlines the procedures for promotions. (D.E. 25-6 at 36-43.) Other than a vague argument that there is "no evidence of a breach of contract," (D.E. 25 at 21) the City does not meet its burden on summary judgment as to this claim. As discussed above in the context of Title VII, Plaintiff has presented evidence that she met the qualifications for the Commander and Assistant Chief positions (as outlined in the CBA), but she was denied promotions due to discrimination. There remains a genuine issue of material fact as to whether the City complied with the promotion procedures outlined in the CBA.
Summary judgment as to Plaintiff's breach of contract claim is denied.
For the reasons stated above, Defendant's Motion for Summary Judgment is GRANTED IN PART AND DENIED IN PART. (D.E. 25.)
The following causes of action against Defendant City of Corpus Christi are DISMISSED: (1) Title VII, ADEA, and TCHRA race, gender, age, and national origin discrimination claims for failure to promote (for conduct occurring before November 20, 2007); (2) 42 U.S.C. §§ 1981, 1983 claims; (3) Hostile work environment; (4) Disparate impact; (5) Constructive discharge; (6) Retaliation; and (7) Declaratory Judgment.
The following causes of action against Defendant City of Corpus Christi are RETAINED: (1) Title VII, ADEA, and TCHRA race, gender, age, and national origin discrimination claims for failure to promote (for conduct occurring after November 20, 2007); (2) Disparate treatment; and (3) Breach of contract.
42 U.S.C. § 2000e-5(e)(3)(A).
