Opinion
CIVIL ACTION NO. 3:99-CV-0047-X
February 7, 2001
MEMORANDUM OPINION AND ORDER
Before the Court are Defendants' Motion for Summary Judgment, filed January 11, 2000; Plaintiffs' Response, filed June 26, 2000; and Defendants' Reply, filed July 24, 2000. After consideration of the briefs, arguments and applicable laws, and for the reasons stated below, Defendants' Motion is GRANTED, and Plaintiffs' claims are DISMISSED WITH PREJUDICE.
I. BACKGROUND
Plaintiffs, who are African-American, work as Deputy Constables in Precinct Six of Dallas County They allege that since the start of his term as Constable on January 1, 1997, Defendant Castillo, who is Hispanic, has discriminated and retaliated against them. On February 1, 1997, Defendant Castillo promoted Raul Palmer, a Hispanic deputy, to Sergeant. On February 10, 1997, Defendant Castillo gave Plaintiff Carter two warnings. Plaintiff Carter filed a grievance, and after hearing this grievance on March 17, 1997, the Dallas County Civil Service Commission (the "DCCSC") withdrew the written warnings. In March or April, 1997, Plaintiffs aided in the District Attorney's investigation into allegations of misconduct by the Constable On June 6, 1997, Defendant Castillo promoted Richard Espinoza, another Hispanic deputy, to Corporal. On July 10, 1997, a television interview, in which Plaintiff Carter discussed the allegations of misconduct, was broadcast.
Defendants' Appendix, 12-15 These resulted from errors made while serving Forcible Entry and Detainers.
Steps were taken to disguise Plaintiff Carter's identity.
On July 15, 1997, both Plaintiffs filed charges with the Equal Employment Opportunity Commission ("EEOC"), alleging racial discrimination in being passed over for promotions to Sergeant and Corporal. Plaintiff Carter also alleged ongoing racial harassment by Defendant Castillo. The EEOC issued its Determination on June 23, 1998, and it issued Plaintiffs' Right to Sue Letters on December 22, 1998.
Plaintiff Carter complained of general harassment, without any further specificity.
Plaintiffs occasionally worked off-duty security jobs, and on December 7, 1997, while working at a local church, a disturbance broke out between two rival church factions. Plaintiffs intervened, and afterwards, the church minister alleged that they had used excessive force against him. After investigating these charges, Defendant Castillo terminated Plaintiff Carter on December 29, 1997. Nothing happened to Plaintiff Artis A day later, Plaintiff Carter filed a grievance for his firing.
On January 16, 1998, Plaintiffs filed a grievance with the DCCSC concerning "Record of Counseling" forms that each had received in June and August of 1997. After a DCCSC hearing on January 25, 1998, Plaintiff Carter was reinstated with full back pay, an intervening raise and benefits. At that same hearing, the DCCSC held Plaintiff Artis' grievance to be non-grievable.
Plaintiff Artis' counsel conceded that no adverse employment action had occurred. Def. App., 64.
Plaintiffs filed this suit on January 8, 1999, alleging racial discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964. On September 8, 1999, they filed their Second Amended Complaint, alleging Claim Two, violation of the Texas Whistleblower Act; Claim Three, 42 U.S.C. § 1983 retaliation in violation of their First Amendment rights, and Claim Four, intentional infliction of emotional distress.
II. ANALYSIS
A. Standard for Summary Judgment
Summary judgment is appropriate when, viewing the evidence in the light most favorable to the nonmoving party, the summary judgment record demonstrates that no genuine issue of material fact exists, and therefore, the moving party is entitled to judgment as a matter of law. Once the movant has met this threshold, the burden shifts to the nonmovant to establish, with significant probative evidence, that a material issue of fact exists. 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." The nonmovant may not rest upon the pleadings, conclusory allegations or unsubstantiated assertions, but must identify specific facts that establish that a genuine issue exists for trial. The nonomovant "must do more than simply show that there is some metaphysical doubt as to the material facts." The nonmovant must "set forth specific facts showing that there is a genuine issue for trial."
See Celotex Corp. v. Catrett, 477 U.S. 317, 322-24 (1986).
See Kansa Reinsurance Co., Ltd. v. Congressional Mortgage Corp. of Tex., 20 F.3d 1362, 1371 (5th Cir. 1994).
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)
See Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
Liberty Lobby, 477 U.S. at 256.
B. Grounds for Summary Judgment
i. Intentional Infliction of Emotional Distress
Plaintiffs had intended to amend their complaint and remove this cause of action, but either by oversight or by confusion, they failed to do so in the Third Amended Complaint. This Court will adopt Plaintiffs' original intent, granting Defendants summary judgment on this claim.
See Plaintiffs' Response to Motion for Summary Judgment, 15.
ii. Federal law claims
The prima facie Title VII discrimination case consists of four elements: 1) membership in a protected group; 2) qualification for a position; 3) adverse employment action; and 4) circumstances supporting a reasonable inference of race discrimination. If a plaintiff successfully states a prima facie case, the burden then shifts to the employer to state a legitimate, non-discriminatory reason for rejecting the plaintiff. If that burden is met, then the plaintiff must show that the stated reason is, in fact, false and that the defendant intentionally discriminated.
See Mitchell v. ATT Co., 1997 WL 340943 (N.D. Tex. 1997).
See Texas Dep't of Community Affairs v. Burdine, 450 U S 248, 253-56 (1981). St. Mary's Honor Center v. Hicks, 509 U.S. 5062, 506 (1993).
A § 1983 claim for retaliation in violation of First Amendment rights consists of four elements: 1) an adverse employment decision; 2) speech involving a matter of public concern; 3) an interest in commenting on the matters of public concern which outweighs the defendant's interest in promoting efficiency; and 4) a showing that the speech actually motivated the adverse decision. Likewise, to state a claim for unlawful retaliation under Title VII, Plaintiff must show that: 1) he engaged in activity protected under Title VII, 2) an adverse employment action occurred, and 3) a causal link exists between the protected activity and the adverse employment action. Thus, a prima facie case under any of these theories requires Plaintiffs to demonstrate the existence of some adverse employment action. The Fifth Circuit recognizes the following as adverse employment actions: "discharges, demotions, refusals to hire, refusals to promote, and reprimands." Lesser actions that do not ultimately affect one's employment are excluded., Furthermore, an adverse employment action, if later reversed, retracted or rescinded, is not actionable.
See Harris v. Victoria I.S.D. 168 F.3d 216, 220 (5th Cir. 1999).
See Grimes v. Texas Dept. of Mental Health and Mental Retardation, 102 F.3d 137, 139 (5th Cir. 1996) (citation omitted).
Pierce v. Texas Department of Crim, Justice, Inst. Div., 37 F.3d 1146, 1149 (5th Cir.1994) (citation omitted).
See id. at 1150 (holding that a polygraph test and a threat to mind one's own business are not adverse employment decisions because no adverse result occurred): Moore v. FT. Mortgage Companies, 1999 WL 803187 (N.D.Tex.) ("deeds are not actionable under Title VII unless they have more than a `tangential effect' upon ultimate employment decisions").
Plaintiffs' Response incorrectly cites Mattern v. Eastman Kodak Co., 104 F.3d 702, 708 (5th Cir. 1997), claiming that it lowers the threshold showing for an adverse employment action. Far from it, Mattern states: "The anti-retaliation provision . . . can only be read, to include only ultimate employment decisions"
See Breaux v. City of Garland, 205 F.3d 150, 158 (5th Cir.2000) (holding that an employee who has been discharged or placed on leave suffers no adverse employment decision if he ultimately regains or retains his job, pay and benefits, and that a reprimand, if rescinded, does not constitute an adverse employment decision).
Plaintiffs' Third Amended Complaint alleges numerous acts of discrimination and retaliation by Defendants. This Court must now sift through that haystack for the few, if any, actual adverse employment actions. Plaintiffs start with several allegations of improper, possibly illegal behavior by Defendant Castillo. They claim that he hired convicted felons, permitted Hispanicreserve deputies to work outside employment, did not discipline a Hispanic deputy who reported to work drunk, and allowed Hispanic deputies to work outside employment during on-duty hours. While this Court finds such conduct to be shoddy management of a constable's office, that is not a relevant standard under either Title VII or § 1983. Given that Plaintiffs are neither convicted felons nor reserve deputies, and have never reported to work drunk, the first three allegations are immaterial. Likewise, not letting Plaintiffs work outside jobs during on-duty hours is not an adverse employment action, especially if that assignment itself is unlawful.
See Third Amended Complaint, paragraph 21(a)-(q). Plaintiffs have pleaded so confusingly that it is more efficient simply to lump all the acts together and determine whether any pass the threshold of adverse employment action.
Third Amended Complaint, paragraph 21(c), (b), (p) and (d), respectively.
Plaintiffs do not claim that they asked to work outside jobs while on county time.
Plaintiffs next allege that Defendant Castillo ran criminal background checks on them, failed to investigate their unprofessional conduct complaint against Lieutenant Alex Garcia and failed to investigate an alleged use of excessive force by two Hispanic deputies. The criminal background check is not actionable; a mere investigation does not constitute an adverse employment action. Likewise, the failure to investigate the unprofessional conduct or the excessive force claims, though once again, bad policy, is not an adverse employment action. Defendant Carter alleges that after reinstatement, he was given too much work and too few uniforms. The Fifth Circuit holds that workload decisions are administrative matters, not adverse employment actions; this Court finds the assignment of uniforms to be similarly administrative. Other allegations that fall short of the adverse employment action threshold are claims that Plaintiffs were denied ticket books, not offered outside jobs, and were counseled for violations of process service when Hispanic deputies were not.
Id., paragraphs (h), (l) and (k), respectively.
See Pierce, 37 F.3d at 1150 (holding that when nothing results from an investigation, it is not actionable).
Plaintiffs may argue that investigating their alleged use of excessive force may have been pretextual, but given that Plaintiff Artis suffered no consequences, and Plaintiff Carter was reinstated after his termination, no required adverse employment action has been shown.
See Dorsett v. Bd of Trustees for St. Colleges Univ 940 F.2d 121, 123-23 (5th Cir. 1991).
The record does indicate that that Plaintiffs worked off duty at a local church and were offered an off-duty job with the Dallas Independent School District superintendent, which they declined.
Third Amended Complaint, paragraphs (a), (c) and (m) These, and paragraph (q) appear to more directly relate to a hostile environment theory under Title VII. As regards failure to promote and retaliation under Title VII and the § 1983, however, these claims simply lack the requisite adverse employment action.
Plaintiffs independently allege "systematic discrimination" by Plaintiffs, in paragraph 21(q). This claim, however, lacks both the factual and temporal specificity to show what happened when. This Court has already addressed Plaintiffs' specific complaints; without more tangible facts supporting the general claim of "systematic discrimination," that mere allegation does not establish an adverse employment action.
Only a few explicit acts might constitute adverse employment actions. Most, however, have already been reversed by administrative action, rendering them unactionable. Although Defendant Castillo terminated Plaintiff Carter, his prompt and full reinstatement by the DCCSC precludes suit for that act. Likewise, by reversing Plaintiff Carter's written reprimand, the DCCSC negated its adverse employment impact. In early 1998, both Plaintiffs filed grievances about "Record of Counseling" forms they had received, forms which they now attempt to characterize as written reprimands. A letter from Mattye Mauldin-Taylor, the Director of Personnel for Dallas County, to Plaintiff Carter clarifies County procedures on such forms. Specifically, she wrote that the Record of Counseling form only details a verbal discussion between personnel, and thus, is not grievable as a discipline or punitive measure. This Court finds that the record of a verbal discussion, with no disciplinary function, is neither a written reprimand nor an adverse employment action.
See Breaux, 205 F.3d at 158.
See id.
Def. App., 199.
Thus, after all this filtering, the only arguable adverse employment actions are the "promotions" of two Hispanic deputy constables to Sergeant and Corporal, and the "promotion" of Deputy Constable Freeman, a white male, to Sergeant. These three `promotions' will be reviewed as possible bases of either a discrimination or a retaliation claim. Because the first two promotions ground and predate Plaintiffs' original EEOC complaints, they cannot logically anchor a Title VII retaliation claim. They remain, however, viable discrimination claims. The `promotion' of Deputy Espinoza to Corporal is only plausible for a claim of First Amendment retaliation, and the second failure to `promote' Plaintiff Artis to Sergeant can arguably fit under all the claims. Thus, each non-promotion states some prima-facie case, for which Defendants must articulate legitimate, non-discriminatory justifications under the McDonnell Douglas burden shifting framework.
In their motion for summary judgment, Defendants claim that no actual promotions took place in February or June of 1997. By affidavit, Mattye Mauldin-Taylor states that changing a deputy constable's title to Corporal or Sergeant did not confer any additional official authority upon him. Likewise, and more importantly, affidavit evidence shows that the change in title did not advance either "Corporal" Espinoza or "Sergeant" Palmer from a lower salary grade to a higher one. Defendant Dallas County adds, and Plaintiffs concede, that the ranks of Corporal or Sergeant do not exist under its rules., Despite their official sound, these titles bear no more concrete significance than if Defendant Castillo "promoted" Palmer to "right hand man" and Freeman to " consigliere." Plaintiffs have simply produced no evidence showing how these "promotions" resulted in pay, responsibility, or assignment differences, without these ordinary features of a promotion, this Court finds no basis for discerning that one had occurred, as would be needed to show falsity or pretext in Defendants' explanation. Thus, Defendants are entitled to summary judgment on the federal claims.
Id. at 3.
Id.
Third Amended Complaint, 7-8.
c. Texas Whistleblower Act
Plaintiffs finally allege that Defendant Dallas County is liable, under the Texas Whistleblower Act ("TWA"), for Defendant Castillo's retaliation against Plaintiffs after their cooperation with the District Attorney's investigation. Defendant Dallas County argues that Plaintiff's grievances either have been resolved through administrative action, or are barred as untimely filed. Plaintiffs respond that Defendants have failed to state which adverse personnel actions are barred, and further, that reinstatement does not preclude further recovery.
Tex Gov't Code Ann. § 554.001 et. seq (West Supp 2000)
See City of Ingleside v. Kneuper, 768 S W 2d 451, 457 (Tex App. — Austin 1989, writ denied).
The TWA provides that "a state agency or local government may not suspend or terminate the employment of or discriminate against a public employee who in good faith reports a violation of law to an appropriate law enforcement authority." The TWA sets forth an explicit timetable governing when an aggrieved employee must initiate administrative proceedings after suffering an adverse personnel action. An "adverse personnel action" affects "a public employee's compensation, promotion, demotion, transfer, work assignment, or performance evaluation." The employee must exhaust all available administrative remedies before filing suit under the TWA, and these administrative proceedings must be initiated no later than ninety days after the date of the alleged violation. Administrative exhaustion is a jurisdictional prerequisite, not an affirmative defense. Thus, Plaintiffs have mistakenly placed the burden upon Defendants to specify which acts are time-barred; this Court can only hear TWA claims that have been exhausted. Once the exhaustion requirement has been met, a TWA claim requires a plaintiff to demonstrate that: 1) he reported alleged violations of law to an appropriate law enforcement agency; 2) he did so in good faith; 3) the employer took an adverse employment action because the employee made the report; and 4) this employment action proximately caused employee's injuries.
Tex. Gov't Code Ann § 554.002.
Id. § 554 001. Although this definition appears broader than its Fifth Circuit analogue, actual differences are marginal.
See id. § 554.006.
See id. § 554.005.
See Univ. Texas Medical Branch at Galveston v. Hohman, 6 S W.3d 767 (Tex.App.-Houston [1st Dist.] 1999), Gregg County v. Farrar, 933 S.W.2d 769, 777 (Tex App.-Austin 1996)
See Permian Basin Community Centers for Mental Health and Mental Retardation v. Johns, 951 S.W.2d 497, 502 (Tex App.-El Paso 1997) ("the plaintiff also bears the burden of showing that the prerequisite to suit has been met").
See Forsyth v. City of Dallas, 91 F.3d 769, 775 (5th Cir 1996)
Plaintiffs offer the following actions as violations of the TWA: 1) two written warnings against Plaintiff Carter in February 1997; 2) unfair treatment, noted in a grievance on October 30, 1997; 3) Plaintiff Carter's termination on December 30, 1997; 4) counseling forms issued in June and August, 1997; 5) a verbal counseling regarding uniforms, noted in a grievance on August 3, 1998; 6) a logbook and performance comments, noted in a grievance on August 7, 1998; and 7) the acts of alleged racial discrimination listed in Paragraphs 21(a) through (q). The DCCSC took the following actions: 1) the warnings were rescinded; 2) the grievance was denied as nongrievable; 3) Plaintiff Carter was fully reinstated; 4) no grievance was timely filed; 5) the grievance was denied as nongrievable; 6) no action was taken; and 7) no grievance was filed.
Timely administrative exhaustion is a necessary pre-condition to a TWA suit. Accordingly, incidents four, six and seven are not actionable under the TWA; Plaintiffs never filed grievances concerning incident seven with a reviewing agency. They have thus failed to exhaust their administrative remedies and cannot do so, now that the window for such review has closed. The grievance for incident four was not timely filed, the counseling forms were issued in June and August, 1997, but the grievance was not filed until January 16, 1998, well after the TWA's ninety-day filing period had expired. Therefore, the TWA precludes an action for incident four. The DCCSC never heard grievances concerning incident six because the complaint had not properly been presented to Plaintiffs' supervisor, as was necessary under the Dallas County grievance procedure. Thus, administrative remedies have also not been exhausted, precluding that TWA claim. Finally, it is logically impossible for incident one, which preceded the District Attorney's investigation by at least a month, to constitute retaliation.
See Def. App., 204.
Administrative exhaustion, while necessary, is not sufficient to state a TWA claim; also required is a showing of an adverse personnel action. Grievances over incidents two and five were timely filed, and administrative remedies were exhausted, but still, the claims fall short of the standards set by the Texas Legislature. Incident two involves a discussion, subsequently documented in a Record of Counseling Form, over the dress code. Incident five involves an argument, in front of a prisoner, over the proper procedure for transporting female prisoners. Plaintiffs do not allege that either incident affected the terms of their employment, as a promotion, demotion or termination would. This Court finds that incidents two and five do not state a TWA claim.
After all this, only incident three remains as a potential adverse employment action in violation of the TWA. Against Plaintiff Carter's allegation that his termination was pretextual, Defendants respond that his full reinstatement precludes a TWA action. Plaintiffs argue, citing City of Ingleside, that reinstatement does not preclude further recovery under the TWA. In that case, a Texas Appeals Court upheld an award for lost future earning capacity even though the plaintiff had already been reinstated. No claim for such damages has been made here, and this Court declines to extend that limited holding.
Rather, this Court is persuaded by Texas cases suggesting that reversal of adverse personnel actions should be a sufficient remedy under the TWA. These cases show that one goal of requiring administrative exhaustion is so that "the complaining party may be successful in vindicating his rights in the administrative process and never have to resort to court." Under this system, the "agency [is] given first opportunity to discover and correct its own errors." Although Plaintiff Carter has suffered an adverse employment action, any wrong has been promptly and fully negated by Defendant Dallas County, and this Court sees no reason for giving him a double recovery. Defendants are entitled to summary judgment on all Whistleblower Act claims.
City of Austin v. Ender, 30 S.W.3d 590, 594 (Tex App. — Austin 2000) (quoting Texas Air Control Bd. V. Travis County, 502 S W.2d 213, 215-16 (Tex App. — Austin 1973, no writ)
Id.
See City of Ingleside 768 S W.2d at 458 ("we hold that [the Legislature] did not intend to allow a double recovery for the same injury").
III. CONCLUSION
Plaintiffs cite no cases that lower the existing bar of adverse employment action under federal law. With respect to the only plausible adverse employment action — non-promotion, Plaintiffs fail to overcome their McDonnell Douglas burden of rebutting Defendants' stated reason for that decision, and their discrimination claim fails. Their § 1983 and Title VII retaliation claims fall for the same reason. With respect to their Texas Whistleblower Act claims, Plaintiffs do not convince this Court that the Texas legislature intended to render administrative exhaustion superfluous by permitting suit against Defendant Dallas County even after it fully remedied the only cognizable adverse employment action.This Court finds that the alleged acts, even drawing all inferences in favor of Plaintiffs, are either resolved, insufficiently adverse, or unintelligibly alleged, such that no genuine issue of material fact remains for trial. The competent summary judgment evidence reveals no actionable adverse employment action and fails to demonstrate the falsity or pretext of Defendant Dallas County's stated reason for non-promotion. Therefore, the only sound conclusion is to grant Defendants' motion for summary judgment Plaintiffs' claims are hereby DISMISSED WITH PREJUDICE, with each party to bear its respective costs
It is so ORDERED.