Opinion
EP-03-CA-0515-FM.
August 5, 2005
Memorandum Opinion and Order on Plaintiff's Motions for Summary Judgment and to Strike Jury Demand
Before the Court is Defendant's "Motion to Strike Jury Demand and Withdraw Case from Jury Docket" [Rec. No. 63], "Plaintiff's Response to Motion to Strike Jury Demand and Withdraw Case from Jury Docket" [Rec. No. 67], "Defendant's Motion for Summary Judgment" [Rec. No. 65], "Appendix to Defendant's Motion for Summary Judgment" [Rec. No. 66], "Plaintiff's Response to Defendant's Motion for Summary Judgment" [Rec. No. 71], "Appendix to Plaintiff's Response to Defendant's Motion for Summary Judgment" [Rec. No. 72], "Defendant's Reply to Plaintiff's Response to Defendant's Motion for Summary Judgment" [Rec. No. 73], "Plaintiff's Motion to Strike Defendant's Reply to Plaintiff's Response to Defendant's Motion for Summary Judgment" [Rec. No. 74], "Plaintiff's Motion for Leave to File Surreply to Defendant's Motion for Summary Judgment" [Rec. No. 75], "Plaintiff's Surreply to Defendant's Motion for Summary Judgment," "Defendant City of El Paso's Motion for Leave to Exceed Page Limit" [Rec. No. 76], "Defendant City of El Paso's Motion for Extension of Time to File Reply" [Rec. No. 77], "Defendant City of El Paso's Motion For Leave to File a Reply to Plaintiff's Surreply" [Rec. No. 78] and "Defendant City of El Paso's Reply to Plaintiff's Surreply." After carefully reviewing the arguments and authorities, the Court is of the opinion that Defendant's "Motion to Strike Jury Demand and Withdraw Case from Jury Docket" [Rec. No. 63] and "Defendant's Motion for Summary Judgment [Rec. No. 65] should be DENIED for the following reasons:
I. FACTUAL AND PROCEDURAL BACKGROUND
Bashar Abugalyon, Plaintiff, brought this employment discrimination suit claiming violations of 42 U.S.C. §§ 1981, 2000e, et seq, and the Texas Labor Code against the City of El Paso in the 168th Judicial District of El Paso County, Texas. Defendant removed this action to federal court. [Rec. No. 1].
Plaintiff's original complaint also sought relief for intentional infliction of emotional distress and conspiracy against the City of El Paso. Plaintiff subsequently removed these claims from this cause of action. [Rec. Nos. 30, 41].
Plaintiff was hired as an Engineering Tech II in the Engineering Department of the City of El Paso in August 1998. He was promoted to Civil Engineer I-IV and then Acting Chief of Land Development. In March of 1999, the Engineering Department merged with the Building Services Department. Terry Williams ("Williams") became Plaintiff's supervisor and Said Larbi-Cherif ("Cherif") became Plaintiff's deputy supervisor. Until 2000, Plaintiff received merit salary increases and high ratings on his job evaluations.
Defendant asserts in April 2001 the Housing Compliance Supervisor for the city, Thomas McGuire, received a report from the Customer Service Manager, Fred Carson, that a piece of property at 301-305 Paisano was violating the applicable zoning code and that Mr. McGuire was merely doing his job in pursuing this violation. Pursuant to his investigation, the city records showed Plaintiff and another individual owned this piece of property determined to be violating the applicable zoning code. Defendant asserts that Building Services Employees were disturbed that one of the department's highest ranking members, Plaintiff, would violate the laws he was charged with enforcing.
Plaintiff is an Arab and his nation of origin is Syria. Plaintiff practices the Muslim religion. Plaintiff claims he was discriminated against for being an Arab, Muslim and being from Syria. This discrimination took the form of Williams selectively initiating a search of all real property owned by Plaintiff to find zoning violations and grounds for terminating Plaintiff. Plaintiff further claims that he did not feel he owned the property, though he admits transfer of ownership was not reflected on the city records at the time, because he sold it to someone else in a "handshake deal." Plaintiff states he informed the city of this deal. On November 8, 2002, the El Paso Municipal Court of Appeals affirmed Plaintiff's conviction for the zoning violation. In May 2002, Plaintiff documented the sale of the Paisano property.
Plaintiff lists other acts supporting his claim of employment discrimination by the City of El Paso. Most notably, beginning after September 11, 2001, Plaintiff claims that Williams would deal with Plaintiff's subordinates to undermine his authority. Furthermore, Williams began changing the time of weekly management meetings to a time when Plaintiff could not be present. They also instructed plaintiff that he must attend other meetings during the same time he should be attending prayer. Plaintiff also claimed that Cherif, a Muslim of Algerian origin, made disparaging remarks and said, "If you get two Arabs together to resolve a problem, they will destroy it."
Plaintiff's Muslim faith requires him to attend prayer at a Mosque on Friday afternoons. Plaintiff informed the city about this commitment when he began working for the City and was accommodated until after September 11, 2001.
On March 7, 2002, Plaintiff requested leave to vacation in Syria. Following his request, the deputy supervisor, Cherif, told Plaintiff that he must complete changes to an ordinance before being authorized for vacation. Plaintiff submitted a draft to Cherif and subsequently made corrections to this draft pursuant to Cherif's request. The Deputy Supervisor denied Plaintiff's vacation request shortly after that because he determined the ordinance was not complete. This denial was appealed to Williams, who granted Plaintiff's vacation leave.
In July 2002, Plaintiff received his performance evaluation for 2001. The evaluation, giving Plaintiff a "2" rating or "meets minimum standards," was untimely. Plaintiff asserts they evaluated his performance at this time and in this manner because Williams and Cherif wanted to terminate Plaintiff before September 1, 2002 when they would no longer have authority to terminate Plaintiff due to restructuring. Plaintiff asserts this was necessary so that Plaintiff would not receive a promotion and become an Arab and a Muslim with authority over Williams and Cherif. The Civil Service Commission later ordered this evaluation re-rated.
The Civil Service Commission is an administrative board that hears and determines appeals or complaints by concerned members of classified employees and ensures fair and equitable treatment of all classified employees. See www.elpasotexas.gov/boards/default.asp?.
In August of 2002, Plaintiff received an unscheduled evaluation giving him a "1" rating or "marginal." On August 26, 2002, the City of El Paso terminated Plaintiff. Plaintiff appealed his termination to the Civil Service Commission. The Civil Service Commission ordered the City of El Paso to reinstate Plaintiff. Plaintiff was reinstated on January 23, 2003 and received back pay.
Plaintiff filed his claim with the EEOC on November 21, 2002 and marked the boxes national origin, religion and retaliation.
Defendant now moves for summary judgment on Plaintiff's national origin, race, religious discrimination and retaliation claims and moves to strike Plaintiff's jury demand.
II. DEFENDANT'S MOTION TO STRIKE PLAINTIFF'S JURY DEMAND
Defendant brought its motion to strike Plaintiff's jury demand pursuant to Federal Rule of Civil Procedure 81(c). In a case removed from state court, Rule 81(c) sets out three ways in which the right to a jury trial may be preserved, two of which are relevant to this action. See Houston North Hospital Properties v. Telco Leasing, Inc., 688 F.2d 408, 409-10 (5th Cir. 1982). Rule 81(c) states in pertinent part:
[1] If at the time of removal all necessary pleadings have been served, a party entitled to trial by jury under Rule 38 shall be accorded it, if the party's demand therefor is served within 10 days after the petition for removal is filed if the party is the petitioner. . . . [2] A party who, prior to removal has made an express demand for trial by jury in accordance with state law, need not make a demand after removal.
Texas Law of Civil Procedure states:
(a) Request. No jury trail shall be had in any civil suit, unless a written request for a jury trial is filed with the clerk of the court a reasonable time before the date set for trial of the cause on the non-jury docket, but not less than thirty days in advance.
(b) Jury Fee. Unless otherwise provided by law, a fee of ten dollars if in the district court and five dollars if in the county court must be deposited with the clerk of the court within the time for making a written request for a jury trial. The clerk shall promptly enter a notation of payment of such fee upon the court's docket sheet.
TEX. R. CIV. P. 216(a), (b).
Defendant argues that Plaintiff's original petition demanded a jury trial but failed to comply with state law or the entirety of Rule 216 because he failed to pay the jury fee. See e.g. Gutierrez v. Elizondo, 139 S.W.3d 768 (Tex.App.-Corpus Christi 2004, no pet.) (holding failure to timely pay a jury fee denies the party the right to a jury trial). Therefore, Defendant asserts Plaintiff is not in accordance with state law and has not properly established his right to jury trial pursuant to Rule 81(c).
Payment not evidenced by the Civil Docket sheet of the 168th District Court.
Plaintiff argues he made an express demand for jury trial in his original petition and had until thirty days prior to the scheduled trial in state court to pay the jury fee pursuant to state law. However, Defendant removed the case and therefore state court was divested of jurisdiction prior to the time to pay the jury fee expired. The Court is presented with a novel situation where state law requires two actions be taken within a certain time to secure a jury trial and an intervening action, removal, has divested the state court of jurisdiction prior to the expiration of the time permitted to secure a jury trial. The Court need not decide this issue because of the alternative means by which a jury trial may be preserved pursuant Rule 81(c).
Defendant also argues that Plaintiff did not comply with the first means of securing a jury trial because, "Plaintiff failed to file a jury demand within ten (10) days after the removal was filed." Although Plaintiff did not file an individual pleading requesting a jury trial post removal, our Circuit has held that "a party need not file a new jury demand in federal court if one that would have satisfied the federal requirements was filed in state court." Wyatt v. Hunt Plywood Co., 297 F.3d 405, 415 (5th Cir. 2002) (citing Mondor v. United States District Court for the Central District of California, 910 F.2d 585, 586-87 (9th Cir. 1990) (finding "where a pre-removal jury demand would satisfy federal but not state requirements, that demand is incorporated into the federal record upon removal, and is deemed to satisfy Rule 38(b))). Rule 38(b) states that
Any party may demand a trial by jury of any issue triable of right by a jury by (1) serving upon the other parties a demand therefor in writing at any time after the commencement of the action . . ., and (2) filing the demand as required by Rule 5(d). Such demand may be indorsed upon a pleading of the party.
There is no dispute that Plaintiff wrote on page thirteen of "Plaintiff's Original Petition" in capital letters and bold face type that " PLAINTIFF HEREBY DEMANDS TRIAL BY JURY." [Rec. No. 1]. This demand satisfies Rule 38(b). Therefore, Plaintiff need not have independently requested trial by jury post removal and Defendant's "Motion to Strike Jury Demand and Withdraw Case from Jury Docket" should be DENIED.
III. DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Plaintiff's suit alleges violations of the Texas Commission on Human Rights Act (TCHRA), Title VII of the Civil Rights Act of 1964 and § 1981. When applying the TCHRA, analogous federal provisions and the law thereof are employed. Pegram v. Honeywell, Inc., 361 F.3d 272, 281 (5th Cir. 2004). Similarly, the elements of proof necessary to establish a Title VII claim and a Section 1981 claim are identical. Anderson v. Douglas Lomason Co., 26 F.2d 1277, 1284 n. 7 (5th Cir. 1994). Thus, the same analysis is employed for Plaintiff's § 1981, Title VII and TCHRA claims.
A. SUMMARY JUDGMENT STANDARD
When bringing a motion for summary judgment, the moving party has the burden of showing the absence of any material fact. Adickes v. S.H. Kress Co., 398 U.S. 144, 157 (1970). If the non-movant cannot demonstrate a genuine issue of material fact summary judgment is proper. FED. R. CIV. P. 56(C). A factual dispute is genuine if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
In determining whether to grant a motion for summary judgment a Court should view all evidence and reasonable inferences to be drawn therefrom "in the light most favorable to the party opposing the motion." United States v. Diebold, 369 U.S. 654,655 (1962). In addition, a Court should accept as true all evidence submitted by the non-movant. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 150 (2000). Finally, Courts should refrain from weighing evidence or making credibility determinations. Id. at 150-51.
B. Title VII Discrimination
Plaintiff asserts Defendant discriminated against him because of his national origin and religion violating Title VII. When a plaintiff asserts a claim for discrimination under Title VII, he must prove the claim of discrimination either through direct or circumstantial evidence. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). Since direct evidence of discrimination is rare, a plaintiff must usually rely upon circumstantial evidence of discrimination.
When analyzing claims based on circumstantial evidence, courts employ the three-part burden shifting analysis set forth in McDonnell Douglas Corp. v. Green. See 411 U.S. at 802-04; Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); Byers v. Dallas Morning News, 209 F.3d 419, 425-26 (5th Cir. 2000). According to this analysis, Plaintiff must first establish a prima facie case of discrimination. Id. If the prima facie case is successfully established, the burden then shifts to defendant to demonstrate a legitimate, nondiscriminatory reason for its action. Id. Finally, if both burdens are met, the burden shifts back to the plaintiff to demonstrate that defendant's nondiscriminatory action was a mere pretext for discrimination. Id. In an employment discrimination case, the ultimate inquiry is "whether the defendant intentionally discriminated against the plaintiff." Roberson v. Alltel Info. Servs., 373 F.3d 647, 651 (5th Cir. 2004).
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) that others similarly situated were more favorably treated. Manning, 332 F.3d at 881. At the summary judgment stage, Plaintiff need only respond to Defendant's motion and demonstrate a genuine issue of material fact to meet his burden.
Defendant does not argue that Plaintiff was not a member of a protected class, was not qualified for the position or that others similarly situated were not more favorably treated. [Rec. No. 65]. Thus, Defendant has not established the absence of any genuine issue of material fact as to elements 1, 2, or 4 of Plaintiff's prima facie case. Rather, Defendant argues that Plaintiff cannot establish his prima facie case because there is no dispute of material fact whether Plaintiff suffered an adverse employment action and a reasonable jury could not find otherwise. Plaintiff's termination was not a "final or lasting adverse employment action" as Plaintiff was reinstated with back pay following an internal grievance procedure, and currently "occupies a better position, with better pay and benefits, than he did before his termination" on August 26, 2002. [Rec. No. 65]. Defendant supports his argument by relying on precedent from the Sixth, Seventh, and Eleventh Circuits. Plaintiff argues the August 26, 2002 termination was an adverse employment action.
"The Fifth Circuit requires that an `adverse employment action' be an `ultimate employment decision' . . . such as hiring, granting leave, discharging, promoting, [or] compensating." Zaffuto v. City of Hammond, 308 F.3d 485, 492 (5th Cir. 2002) (citing Mattern v. Eastman Kodac Co., 104 F.3d 702, 707 (5th Cir. 1997) and declining to decide whether a 240 hour suspension is an adverse employment decision). "The Fifth Circuit and the Eighth Circuit have adopted the `ultimate employment decision standard.'" Id. "Every other circuit to address the issue has held that employment decisions falling short of ultimate employment decisions may suffice." Id. Because every other Circuit has adopted a broader definition of "adverse employment action" the Court finds it inappropriate to rely on these Circuits' holdings.
It should be noted, the Court makes no decision on whether the holdings would have been applicable to the case at bar.
Our Circuit has not decided a case similar to the one at bar. Moreover, the Fifth Circuit has stated that "post- Mattern cases in this circuit provide only data points, from which it is difficult to discern a more specific conception of `ultimate employment action.'" Zaffuto, 308 F.3d at 792-93.
Because the Fifth Circuit has not addressed this issue, our Circuit's precedent diverges with other Circuits, and the statute does not define the terms, the Court finds guidance in the Supreme Court's discussion of Congressional intent regarding Civil Rights Act of 1964, the procedural provisions of Title VII, and the statutory remedies available under Title VII.
The Supreme Court has held that Congress intended that recourse under the Civil Rights Act be independent of other preexisting recourse available to an aggrieved employee. Int'l Union of Elec., Radio and Mach. Workers, AFL-CIO, Local v. Robbins Myers, Inc., 429 U.S. 229, 236 (1976). Although Plaintiff was reinstated after successfully pursuing his grievance procedure with the Civil Service Commission, such success does not preclude his Title VII action because Plaintiff may seek recourse under both. Finding otherwise would be inconsistent with Supreme Court precedent.
A jurisdictional prerequisite to bringing Plaintiff's Title VII action is exhausting his administrative claims with the EEOC. See Young v. City of Houston, 906 F.2d 177, 179 (5th Cir. 1990). The Supreme Court has held that the statute of limitations for a Title VII claim begins to run on the date of the alleged discriminatory decision. Int'l Union, 429 U.S. at 236. Consistent with this position, the statute of limitations for Title VII claims is not tolled while pursuing an internal grievance procedure. Id. at 234. Thus, had Plaintiff not prevailed in the internal grievance procedure of the Civil Service Commission, he would have been prevented from filing a claim with the EEOC because it would have been untimely.
Finally, the Court examines the damages provisions explicitly authorized by Title VII since the Civil Rights Act of 1991. Specifically, back pay, interest on back pay, compensatory damages, attorney's fees and punitive damages are authorized. See 42 U.SC. §§ 1981a(b); 2000e-5(g), (k). If the Court were to find every instance where an employee was terminated and reinstated with back pay was not an adverse employment action, the employee would be denied congressionally authorized relief to seek the additional damages authorized by the statute.
Thus, consistent with the precedent of this Circuit and the Supreme Court, the Court finds that Plaintiff suffered an ultimate employment decision when he was fired from his job on August 26, 2002. Plaintiff has thus established a rebuttable presumption that the City of El Paso unlawfully discriminated against him.
Defendant argues that it has overcome this presumption because it proffered a legitimate, non-discriminatory reason for terminating plaintiff. Defendant asserts that Plaintiff's relationship with Defendant only deteriorated after Plaintiff's supervisors learned of the zoning violations, later upheld by the County Court. Thus, according to Defendant, they legitimately terminated Plaintiff because he was a senior employee in Building Services who was violating the very laws that the department was responsible for enforcing.
Plaintiff argues these reasons are merely pretextual. Pretext may be proved by "either showing that a discriminatory reason motivated the defendant or by showing that the proffered reason is unworthy of credence." Moore v. Eli Lilly Co., 990 F.2d 812, 815 (5th Cir. 1993) (citations omitted). "To overcome a motion for summary judgment of course, the plaintiff need only produce evidence to create a genuine issue of material fact concerning pretext." Id. The Civil Service Commission found that a zoning violation is not a dismissible offense sufficient to give reason to fire an employee of the Building Services Department. A reasonable fact finder could conclude that Defendant's reason is unworthy of credence for the same reasons the Civil Service Commission has found that a zoning violation is not a dismissible offense for an employee of the Building Services Department. Taking the facts in the light most favorable to Plaintiff, and considering the circumstances as a whole, a reasonable fact finder could conclude that Plaintiff's dismissal was based on national origin or religion because Defendant tried to prevent Plaintiff from attending religious services during working hours where Plaintiff had attended such services in the past, and terminated Plaintiff close to the time when he would have been eligible for a promotion that his supervisors could not tolerate.
C. RETALIATION
To establish a prima facie case of retaliation, Plaintiff must show (1) that he engaged in an activity protected by Title VII; (2) that an adverse employment action occurred; and (3) that there is a causal link between the protected activity and the adverse employment action. Manning v. Chevron Chemical Co., LLC, 332 F. 3d 874, 883 (5th Cir. 2003).
Defendant's motion for summary judgment only discusses possible adverse employment actions occurring prior to Plaintiff's termination and rests on its argument that Plaintiff has not suffered an adverse employment action to show that there is no genuine question of material fact on one element of Plaintiff's prima facie case. [Rec. No. 65]. For the same reasons stated above, the Court finds Plaintiff has suffered an adverse employment action. Defendant does not assert that Plaintiff cannot raise a genuine issue of material fact as to the other elements of retaliation. When bringing a motion for summary judgment, the moving party has the burden of showing the absence of any material fact. Adickes v. S.H. Kress Co., 398 U.S. 144, 157 (1970). As Defendant has not met its burden, the Court need not proceed to determine whether Plaintiff has established a prima facie case.
D. PLAINTIFF'S § 1981 CLAIM
Defendant asserts that Plaintiff's Section 1981 claim should be dismissed because § 1981 is only a remedy for race-based claims and Plaintiff has not asserted any claim based on race. Such argument is of small consequence because the analytical framework under Title VII and § 1981 are the same. Nonetheless, the Court is of the opinion that Defendant's Motion to dismiss on this theory should be DENIED.
The Supreme Court explicitly held that if Plaintiff can "prove that he was subjected to intentional discrimination based on the fact that he was born an Arab, rather than solely on the place or nation of his origin, or his religion, he will have made out a case under § 1981." Saint Francis Coll. v. Al-Khazraji, 481 U.S. 604, 613 (1987). Although Plaintiff stated his Section 1981 claim under the headings of national origin and religious discrimination in his original pleading, the Court declines to dispose of Plaintiff's claim merely on the basis of inartful pleading. Furthermore, Defendant has not shown that there is no question of material fact whether Plaintiff can prove he was subjected to intentional discrimination based on the fact that he was born an Arab. For the same reasons stated above, when Defendant has not met its burden the Court need not proceed to determine whether Plaintiff has established his prima facie case. IT IS THEREFORE ORDERED "Plaintiff's Motion to Strike Defendant's Reply to Plaintiff's Response to Defendant's Motion for Summary Judgment" [Rec. No. 74], is DENIED. "Defendant City of El Paso's Motion for Leave to Exceed Page Limit" [Rec. No. 76], and "Defendant City of El Paso's Motion for Extension of Time to File Reply" [Rec. No. 77] are GRANTED. "Plaintiff's Motion for Leave to File Surreply to Defendant's Motion for Summary Judgment" [Rec. No. 75] is GRANTED. "Defendant City of El Paso's Motion For Leave to File a Reply to Plaintiff's Surreply" [Rec. No. 78] is GRANTED. IT IS FURTHER ORDERED Defendant's "Motion to Strike Jury Demand and Withdraw Case from Jury Docket" [Rec. No. 63] and "Defendant's Motion for Summary Judgment [Rec. No. 65] are DENIED. IT IS FINALLY ORDERED that Plaintiff and Defendant brief the issue of what damages Plaintiff is entitled to seek or prevented from seeking at trial. Such briefs shall be submitted to the Court by August 22, 2005 for the Court's consideration. The parties will be required to attend a status conference to resolve pending issues prior to trial the week of August 22, 2005.