Opinion
Civil Action No. 3:97-CV-2616-G
August 31, 2000
MEMORANDUM ORDER
Before the court is the motion of the defendants the State of Texas ("the State"), the Office of the Attorney General of Texas ("the OAG"), and Victor Mantilla ("Mantilla") (collectively, "the defendants") for summary judgment. For the following reasons, the defendants' motion is granted.
Also before the court are the defendants' motion to strike plaintiff's ("Meisner's") brief opposing summary judgment ("Motion to Strike") and Meisner's verified motion for enlargement of time to file response ("Motion for Enlargement"). According to the defendants, Meisner's response was untimely filed. See Motion to Strike at 1-2. The defendants also correctly point out that Meisner's brief originally failed to comply with this court's rule requiring briefs in excess of ten pages to contain a table of contents and a table of cases. Id. at 2; also Local Rule 5 6.5 (b), 7.2(d). However, although this case was only recently assigned to the undersigned judge, the court is aware that the parties previously have expended considerable time and resources arguing matters of procedure in this case. E.g., order of February 111, 2000 (Lindsay, J.) (denying the defendants' motion for Rule 11 sanctions but describing Meisner's actions in obtaining a default judgment against the defendants as "suspect") at 3. Given this history, and given that the ruling on these motions will not affect the outcome of the case, the court prefers to decide this case on the merits. For this reason, the Motion to Strike is DENIED, and the Motion for Enlargement is GRANTED.
I. BACKGROUND
This is an employment discrimination suit. The plaintiff, Roland D. Meisner ("Meisner"), was employed by the OAG from January 11, 1993 through August 1, 1997. During this time period, Meisner worked as an Assistant Attorney General and Managing Attorney General in the Child Support Division ("CSD"). On October 24, 1997, Meisner, proceeding pro se, filed this suit alleging violations of Title VII of the Civil Rights Act of 1964 ("Title VII"), the Equal Pay Act of 1963, 42 U.S.C. § 1983, and Chapter 21 of the Texas Labor Code ("Chapter 21"). See Findings, Conclusions and Recommendation of the United States Magistrate Judge ("Findings") at 1-2; also generally Complaint Under Title VII of the Civil Rights Act of 1964, the Equal Pay Act of 1963, the Civil Rights Act of 1871, and Chapter 21, Texas Labor Code ("Complaint").
The facts of the case are as follows. In the fall of 1992, Meisner applied for a position as an assistant attorney general in the OAG's Child Support Litigation division. Appendix to Breif [sic] in Support of Defendants' Motion for Summary Judgment ("Defendants' Appendix") at 98-109. Senior Field Attorney Ann Y. Collins ("Collins") interviewed Meisner and recommended to Senior Field Attorney Andrew D. Leonie ("Leonie") that Meisner be hired. Id. at 7. Meisner began his employment with the GAG on January 11, 1993 in Unit 410 in Dallas, Texas. Id. at 7, 234. At that time, the OAG's child support collection function was carried out by two divisions, Child Support Enforcement (directed by non-attorneys) and Child Support Litigation (directed by attorneys). Id. at 8, 64, 163. Although the managing attorney for Unit 410 was Nancy Mason ("Mason") (a white female), Meisner reported directly to Leonie (a white male), who supervised five units in the Dallas area. Id. at 9, 247, 257-59, 268. As Senior Field Attorney, Collins supervised three Tarrant County units and one in Collin County. Id. at 7.
Unit 410 specializes in "interstate" child support cases, in which the GAG, at the request of the counterpart child support enforcement agencies in other states, obtains enforcement orders against child support obligors in Texas on behalf of obligees in those other states. Id. at 7-8, 163, 234-43. In such interstate cases, the claim against the obligor (typically, the noncustodial parent) has usually been established in the sending state. Id. at 163, 234-43. Unlike intrastate child support cases, interstate cases do not require jury trials or direct dealings with the custodial parent; they also require fewer attorney days in court and less live testimony in court proceedings. Id. at 8, 64, 163, 234-43, 269. OAG Child Support attorneys who have done both kinds of cases consider the interstate cases easier and less stressful. Id. at 8, 64, 163-64.
In the summer of 1993, Leonie completed Meisner's six-month evaluation, rating him "outstanding" in most categories. Id. at 244-46. At that time, GAG personnel policies did not make performance evaluations a prerequisite for merit raises. Id. at 223-24. In December of 1993, Leonie recommended a one-step merit increase for Meisner, which was approved. Id. at 63, 66. There is some controversy surrounding this increase, as Leonie's initial typed memo recommended a two-step increase, but the "two" and the new salary total were crossed out and replaced at some point by a handwritten "one" and lower revised salary total. See id. at 66; Plaintiff's Brief Opposing Summary Judgment ("Plaintiff's Brief") at 2-3. This change is initialed "ADL," but the change on Meisner's Personnel Action Form documenting his raise has handwritten strikeouts without initials lowering his salary increase from two to one levels. See Plaintiff's Verified Response to Defendants' Motion for Summary Judgment ("Plaintiff's Appendix") at 82. While intimating that there is something sinister about these changes, see Defendants' Appendix at 252-56, Meisner has no evidence that they were made by anyone other than Leonie. Id. at 254, 256.
Neither Mason nor Leonie completed a formal written evaluation of Meisner's performance as an assistant attorney general for fiscal years 1994 or 1995. Id. at 244, 257, 260, 270-7 1, 282. Nor did either recommend Meisner for a merit raise in those fiscal years. Id. at 71, 88-97. According to the defendants, Meisner would not have been eligible for a merit raise in fiscal year 1995, even with an evaluation, because of his July 1995 promotion raise. Defendants' Brief at 4. Early in fiscal year 1996, the GAG amended its personnel policies to require a performance evaluation prior to any merit raise. See Defendants' Appendix at 162, 223-24. According to the defendants, this policy was often not strictly adhered to, and it remained possible for attorneys sometimes to get merit raises without annual evaluations. Id. at 8, 162, 222-23. The defendants have also presented evidence that female and minority Child Support attorneys, along with white male attorneys, were among those who sometimes failed to receive annual evaluations. Id. at 8, 162.
In April of 1994, the Child Support Enforcement division and the Child Support Litigation division were combined, resulting in a new supervisory structure for attorneys. Id. at 8, 64, 163. In each of seven (later eight) areas, consolidated units were supervised by a non-attorney "Area Manager." Id. at 163. On matters pertaining to legal actions and decisions by assistant attorneys general, the Area Manager was advised and assisted by a Special Counsel, who was an attorney. Id. Each unit was directly supervised by a Managing Attorney. Id. Immediately after the consolidation, the Unit 410 Managing Attorney was Mason, the Area IV Manager was Velma Coleman (non-attorney, black female), and the Special Counsel was Collins. Id. at 9, 163, 257-58, 276. Area Managers were supervised by the Director of Field Operations, who at all relevant times was Adrian Vasquez ("Vasquez") (Hispanic male). Id. at 9, 162, 190, 278-79.
In April of 1995, following Mason's resignation, Coleman, on Collins' recommendation, appointed Meisner acting managing attorney for Unit 410. Id. at 9, 270-71, 277. When Meisner applied for the permanent position of Unit 410 managing attorney, he was interviewed and recommended for the position by Collins, Coleman, Antonio Merino ("Memo") (Hispanic male), Vasquez, and Laquita Hamilton (black female), and approved for the position by Jorge Vega (Hispanic male). Id. at 9-10, 163, 278-80. He officially began as managing attorney for the unit in July of 1995, with a salary increase of $2,856 per year. Id. at 10, 92, 281.
In October of 1995, Patricia Diaz-Hartline ("Diaz-Hartline") was transferred to Unit 410, where as assistant attorney general she continued with the same salary she had received as a managing attorney. Id. at 50. Typically in the GAG, attorneys who leave a supervisory position but remain with the office are not reduced in salary. Id. at 10, 50, 64, 164, 312. As Diaz-Hartline (1) had been licensed longer than Meisner, (2) had been licensed in Texas longer than Meisner, (3) had been with the GAG longer, and (4) had been a supervising attorney longer, she earned a higher salary than Meisner at the time of her transfer. Id. at 10, 48-49, 310. However, both Meisner and Diaz-Hartline's salaries were within the range specified by the GAG salary chart for their respective years of licensure. Id. at 10, 72-73, 153-58. From January 1993 to October 1996, Diaz-Harthne received no raises while Meisner received two. Id. at 10, 71, 88-97.
In March of 1996, Meisner and Diaz-Hartline had a dispute over her handling of a case. Id. at 11, 50-51, 323-24. He accused her of insubordination, while she argued that her decision was justified and accused him of unethical conduct and violating GAG policy. Id. at 11, 28-32, 50-51, 61-62, 325-27. When Meisner complained to Collins, Coleman and Vasquez, none of them shared his view that Diaz-Hartline's conduct was improper or deficient. Id. at 11, 164. Diaz-Harthne left Unit 410 in 1996 to become a special litigator in the Carlisle office. Id. at 12, 51, 333-34. According to Meisner, it was at this time that the defendants began the process of reducing the human resources which were authorized in his budget. See Plaintiff's Brief at 7.
In October of 1996, after Coleman's resignation in August, defendant Mantilla became Area Manager for Area W. Defendants' Appendix at 12, 164, 183, 340. He came to Area IV aware that delays and failure to complete evaluations were a problem throughout the Child Support division. Id. at 196-97. However, he did not feel he could complete any managing attorney s evaluation until the end of the fiscal year, when he had enough information for an accurate appraisal. Id. at 197-98. Mantilla transferred Merino from Meisner's unit to Unit 407 in May 1997, because he decided that Memo's experience and "people skills" were needed for that Unit, which had neither a unit manager nor a managing attorney and which had ongoing difficulties dealing with parents and advocates. Id. at 67, 357-58. To replace Merino, Mantilla supported approval of the applicant interviewed and recommended by Meisner. Id. at 358, 360. However, according to Meisner, Mantilla's actions continued the process of improperly reducing Meisner's budgeted resources by transferring an attorney out of Meisner's unit and not allowing him to replace him. Plaintiff's Brief at 7. According to the defendants, Meisner never complained to Vasquez about the failure to select his recommended candidate or to promptly replace Merino. Defendants' Appendix at 378-380.
In the spring of 1997, Meisner completed a favorable evaluation and raise recommendation for Lori Lessard ("Lessard") (white female), an assistant attorney general in his unit. Id. at 12, 349-350. However, because Meisner failed to attach a case reading worksheet" and "court observation worksheet," which Collins had instructed all Area IV managing attorneys in writing to include with attorney evaluations, Collins refused to forward Lessard's evaluation to Mantilla and Vasquez. Id. at 12, 33-35, 350-52. Meisner failed to heed e-mail messages from Collins on this subject in April and May of 1997. Id. at 12, 36-41, 353-56. Collins returned other attorney evaluations to other managing attorneys for failure to comply with this requirement. Id. at 12, 353. Lessard resigned from the GAG in June of 1997. Id. at 72, 150-51, 356. Consequently, according to the defendants, even if Collins had immediately forwarded Meisner's recommendation, a raise might not have come in time to benefit Lessard. Defendant's Brief at 10.
After Lessard's departure, Collins and Mantilla offered to temporarily assign attorneys from other units until the vacancies were filled, but Meisner would not accept the help. Defendants' Appendix at 13, 43-47. Meisner was aware that an attorney returning from maternity leave in October would be assigned to his unit. Id. at 47, 336-37. Other than perhaps by e-mail messages, which he does not know whether Vasquez read, Meisner never complained to Vasquez about a lack of sufficient resources to do his job. Id. at 165, 337, 378-80.
Mantilla, who is not an attorney, evaluated managing attorneys on administrative matters and on their units' performance in meeting annual statistical goals set for each unit ( e.g., total dollars of collections in AFDC cases, total collections for non-AFDC cases, total paternities established). Id. at 203, 361. But for assessment of performance factors dealing with legal skills, Mantilla relied on the input of Collins. Id. at 13, 203. Prior to the end of July 1997, Collins completed her part of the evaluation of some managing attorneys — including white male Brian Burton — but did not finish her appraisal of some others — e.g., Cynthia Jordan (black female), Ruben Montemayor (Hispanic male), and Meisner. Id. at 13, 37 1-72.
To evaluate managing attorneys, Collins had each send her ten case files to review. Id. at 13-14, 42, 363-64. The selection of cases was left to the attorney. Id. at 14, 363-64. Meisner delegated the task to staff. Id. at 363. Collins found what she considered to be evidence of problems in case preparation in the sample from Unit 410; however, rather than base her judgment on the sample, she asked for five additional cases, which were not sent to her until July. Id. at 14, 200-01. Collins also wanted to observe Meisner in court, as she had other managing attorneys, but was unable to do so because Meisner was on leave during much of June and/or July 1997. Id. at 14.
In June of 1997, Mantilla included Meisner's name on a list he sent to the CSD personnel liaison of staff he expected to recommend for merit raises. Id. at 200, 376. In June, Mantilla inquired of Collins about progress on Meisner's evaluation. Id. at 15, 200-01. Collins told him about her concerns from her review of Meisner's cases, her request for additional cases, and her desire to observe him in court. Id. at 15, 202. As of July 31, 1997, Mantilla had not received Collins' input and had not completed Meisner's formal evaluation. Id. at 194-95, 366. Significantly for the purposes of this case, of the thirteen individuals who held the ten managing attorney positions in Area IV during fiscal year 1997, performance evaluations for that year were not completed by Mantilla on seven, including a black male, a Hispanic female, two Hispanic males, a black female, a white female, and Meisner. Id. at 68-69, 370- 72.
On July 31, 1997, when Meisner saw his July paycheck, which did not include a raise, he concluded that because he had not received an evaluation, it was now impossible for him to get a merit raise for fiscal year 1997. Id. at 373. However, according to the defendants, if the necessary paperwork, including the evaluation, had been approved and sent to Human Resources by August 15th, Meisner could have received a merit raise effective August 1st. Id. at 165, 220-2 1, 373-74. Notwithstanding the goal of making merit raises effective July 1st, at least thirty CSD attorneys received merit raises that were effective August 1, 1997. Id. at 3-4, 165-66.
For every managing attorney for whom Mantilla recommended a merit raise at the end of fiscal year 1997, his/her unit had either (a) met or exceeded its statistical performance goals for the year or (b) significantly improved from the preceding year. Id. at 191-92, 199-200. An exception was Angela Halfmann (white female), who, although her unit had exceeded its goals, had received a significant raise in fiscal year 1996 and, because merit raise funds were limited and other eligible staff had not had a raise in a longer time, was not recommended for a merit raise at the end of fiscal year 1997. Id. at 68, 192. Angela Gilliland (white female) and Diaz-Hartline, who received raises in March 1997 upon their selection as managing attorneys, were considered ineligible for merit raises in fiscal year 1997. Id. at 68; Defendants' Brief at 12-13.
Provided Collins' assessment of Meisner's legal performance was favorable, Mantilla expected to recommend Meisner for a merit increase. Defendants' Appendix at 200. Because Collins had not yet finished her assessment of Meisner (as well as some of the other managing attorneys, including females and minorities), Meisner's August 1, 1997 resignation mooted the question of whether Collins' appraisal would have been favorable. Id. at 375. On July 31, 1997, Meisner called Mantilla at home late in the evening to inform him that he (Meisner) would resign effective the next day. Id. at 187, 198. When Mantilla asked him why, Meisner replied that Mantilla knew why, although Mantilla insisted he did not. Id. The next day, around 8:00 a.m., Meisner delivered his letter of resignation, effective at the close of business that day, to Mantilla's office. Id. at 187-88, 373. Meisner did not utilize OAG grievance procedures before resigning. Id. at 165, 219-20.
After filing a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") and requesting a right to sue, Meisner requested and received a meeting on September 11 or 13, 1997 with Adrian Vasquez and with Randy McNair, director of the GAG Human Resources division. Id. at 189, 207-17, 376-82. The parties dispute whether Vasquez and/or McNair offered Meisner a raise if he would return to his job. Id. at 165, 209, 212-14, 381. However, it is not disputed that Meisner demanded, as a "settlement," $400,000-$500,000 with "reinstatement" or $800,000 without reinstatement. Id. at 165, 209, 215, 225, 382. Meisner was replaced first by a white female, as acting managing attorney, and then by another white female as permanent managing attorney a year later, each at a lower salary than Meisner was paid in that position. Defendants' Appendix at 69, 73, 159- 60; Plaintiff's Brief at 9.
On October 24, 1997, Meisner filed this suit, essentially alleging that he was discriminated against because he was denied timely evaluations and because the human resources in his department were unlawfully reduced. See Complaint ¶ 17. Applying what could best be termed a "shotgun" approach, Meisner has charged the defendants with violating most of the applicable discrimination laws in a wide variety of ways. On April 15, 1998, the magistrate judge entered findings recommending dismissal of certain of Meisner's claims. See generally Findings. The court adopted these findings on May 8, 1998, and ruled that Meisner's remaining claims against the State are his section 1983 claim against Mantilla in his individual capacity, and his Title VII and Equal Pay claims against the State, the GAG and Mantilla in his official capacity. See Order of May 8, 1998 at 3. The defendants have now moved for summary judgment on these remaining claims. See generally Defendants' Brief.
II. ANALYSIS
A. Evidentiary Burdens on Motion for Summary Judgment Summary judgment is proper when the pleadings and evidence on file show that no genuine issue exists as to any material fact and that the moving parties are entitled to judgment as a matter of law. F. R. CIV. P. 56(c). "[T]he substantive law will identify which facts are material." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A genuine issue of material fact exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id.
Movants for summary judgment make such a showing by informing the court of the basis of their motion and by identifying the portions of the record which reveal there are no genuine issues of material fact. See Celotex Corporation v. Catrett, 477 U.S. 317, 323 (1986). The pleadings, depositions, admissions, and affidavits, if any, must demonstrate that no genuine issue of material fact exists. F. R. Civ. P. 56(c). Once the movants make this showing, the nonmovant may not rest on the allegations in his pleadings. See Isquith for and on behalf of Isquith v. Middle South Utilities, Inc., 847 F.2d 186, 199 (5th Cir.), cert. denied, 488 U.S. 926 (1988). Rather, he must direct the court's attention to evidence in the record sufficient to establish that there is a genuine issue of material fact for trial. See Celotex, 477 U.S. at 324.
To carry this burden, the "opponent must do more than simply show. . . some metaphysical doubt as to the material facts." Matsushita Electric Industrial Company, Ltd. v. Zenith Radio Corporation, 475 U.S. 574, 586 (1986). Instead, the nonmovant must present evidence sufficient to support a resolution of the factual issue in his favor. See Anderson, 477 U.S. at 257. While all of the evidence must be viewed in a light most favorable to the nonmovant, Anderson, 477 U.S. at 255 (citing Adickes v. S.H. Kress Company, 398 U.S. 144, 158-59 (1970)), neither conclusory allegations nor unsubstantiated assertions will satisfy his summary judgment burden. See Little v. Liquid Air Corporation, 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc); Topalian v. Ehurman, 954 F.2d 1125, 1131 (5th Cir.), cert. denied, 506 U.S. 825 (1992). Summary judgment in favor of the movants is proper if, after adequate time for discovery, the non-movant fails to make a showing that there is evidence in the record which, if believed by a jury, would support a verdict in his favor.
B. Time-Barred Claims 1. Title VII Claims prior to November 12. 1996
Meisner filed the EEOC charges on which his Title VII claims are based on September 8, 1997. Complaint at 3, ¶ 12. The defendants first argue that all of Meisner's Title VII claims based on events that occurred before November 12, 1996 — 300 days prior to his EEOC charge — are time-barred. See Defendants' Brief at 15- 18. According to the defendants, the time-barred claims include Meisner's complaints about (1) the failure to evaluate him in fiscal years 1994-1996; (2) the award of a one-step instead of a two-step merit raise in January of 1994; (3) the transfer of Diaz-Hartline to his unit in October of 1995; (4) Diaz-Hartline's higher salary while she was under Meisner's supervision (October 1995 to Spring 1996); (5) the refusal to discipline Diaz-Hartline in March 1996; (6) any actions by Mason as managing attorney over Meisner (January 1993 to April 1995); (7) the selections of Coleman and Mantilla as Area IV Manager (pre-April 1994 and October 1996, respectively), Collins as Area IV Special Counsel (April 1994), and Diaz-Hartline as managing attorney of Unit 411 (October-November 1994); and (8) Meisner's managing attorney salary prior to November 12, 1996. Id. at 15-16; also generally Verified Statement of Plaintiff Roland D. Meisner, located at 1-33 of Plaintiff's Appendix.
This court has struggled to understand Meisner's allegations, presented as they are in a number of different affidavits filed with his Appendix, with his Response to the defendants' Motion for Summary Judgment, and with earlier motions. E.g., Affidavit of Roland D. Meisner, attached to Plaintiff's Motion and Brief for Judgment by Default Against Defendants State of Texas and Victor Mantilla, filed December 5 1997. Meisner's presentation of the evidence submitted to support his claims has not been much clearer or better organized. It should be noted that "Rule 56 does not impose upon the district court a duty to sift through the record in search of evidence to support a party's opposition to summary judgment." Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir.) (quoting Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915 n. 7 (5th Cir.), cert. denied, 506 U.S. 832 (1992)), cert, denied, 513 U.S. 871 (1994). However, because it ultimately does not make any difference to the disposition of this case, the court has attempted to consider each of Meisner's claims, no matter how recondite they are or how cryptically presented.
It is true, as the defendants argue, that "[i]n a state that, like Texas, provides a state or local administrative mechanism to address complaints of employment discrimination, a title VII plaintiff must file a charge of discrimination with the EEOC within 300 days after learning of the conduct alleged." Huckabay v. Moore, 142 F.3d 233, 238 (5th Cir. 1998). Like the plaintiff in Huckabay, 142 F.3d at 237-39, Meisner did not file a charge with the EEOC within 300 days after occurrence of the conduct he now claims to be discriminatory. However, relying (at least superficially) on the "continuing violation doctrine," Meisner argues that he is relieved from establishing that all of the complained of conduct took place within the actionable period. See Plaintiff's Brief at 10.
"The continuing violation theory relieves a plaintiff of establishing that all of the complained-of conduct occurred within the actionable period if the plaintiff can show a series of related acts, one or more of which falls within the limitations period." Huckabay, 142 F.3d at 238, 239-40 (finding that continuing violation doctrine applied only to the plaintiff's hostile environment claim, and not to his allegations regarding specific instances of demotion and failure to promote him because of his race) (quoting Messer v. Meno, 130 F.3d 130, 134 (5th Cir. 1997)). "Although there is no definitive standard for what constitutes a continuing violation, the plaintiff must demonstrate more than a series of discriminatory acts. He must show an organized scheme leading to and including a present violation, such that it is the cumulative effect of the discriminatory practice, rather than any discrete occurrence, that gives rise to the cause of action." Huckabay, 142 F.3d at 239 (citations omitted).
The court concludes that, with the exception of (I) above, Meisner's pre- November 1996 allegations describe a series of one-time discrete events, rather than an organized scheme, and are therefore time-barred. For example, Meisner alleges he was told by other attorneys in Area IV "during 1993 after [he] was hired," that an "outstanding" evaluation entitled him to a two-step merit rase. Defendants' Appendix at 248-49. Consequently, if the one-step merit raise was an injury, Meisner knew about it in January of 1994. See, e.g., Hendrix v. City of Yazoo City, Mississippi, 911 F.2d 1102, 1105 (5th Cir. 1990) ("Here, the [plaintiffs] were fully aware of the [defendant's] reduction in their base rate of pay when they received their. . . paychecks. The reduction in pay was itself the violation; subsequent pay packets simply gave it continuing effect in a facially neutral manner."). Similarly, before Diaz-Hartline left his unit in the spring of 1996, Meisner knew that she had been transferred to his supervision without his consent, that his superiors were unwilling to discipline her as he recommended, and that she made a higher salary than he did. Yet Meisner waited until September of 1997 to complain to the EEOC about these matters.
In Meisner's case, the alleged failure to evaluate him in accordance with OAG policy is not the same type of discriminatory act as "reducing" his merit raise by one step in 1994, selecting minority and female employees for positions for which Meisner did not apply, paying Meisner less than other managing attorneys (or than his unit manager), transferring Diaz-Hartline to his unit without his consent, paying Diaz-Hartline more while she was Meisner's subordinate, or refusing to discipline Diaz-Hartline. Consequently, with the exception of Meisner's claim relating to the failure to evaluate him from 1994 to 1996, his Title VII claims for these allegedly discriminatory acts are time-barred because they do not constitute continuing violations.
"When an employer has a discriminatory promotion policy or system and the system is maintained into the charge-filing period, a plaintiff may attack the promotion system even though the plaintiff was not denied a job benefit within the charge-filing period." Rendon v. AT T Technologies, 883 F.2d 388, 395-96 (5th Cir. 1989). At this point, the court will assume that Meisner's "failure to evaluate" claim, which it discusses in Section E below, is related to an attack on an allegedly discriminatory promotion system, and is thus a sufficient allegation of a continuing violation.
2. Claims Under 42 U.S.C. § 1983 and the Equal Pay Act prior to October 24. 1995 (if any)
Section 1983 incorporates the forum state's limitations period for personal injury actions, which in Texas is two years. Frazier v. Garrison Independent School District, 980 F.2d 1514, 1521 (5th Cir. 1993) (citing Wilson v. Garcia, 471 U.S. 261, 276 (1985)). The statute of limitations begins to run on the date that Meisner knew or should have known that he suffered a compensable injury. Kline v. North Texas State University, 782 F.2d 1229, 1232-3 (5th Cir. 1986). As a result of the court's May 8, 1998 rulings, the only remaining defendant on Meisner's section 1983 claims is Mantilla in his individual capacity. Meisner has admitted that he has no claim against Mantilla personally for anything that happened prior to October 1996, when Mantilla became Meisner's supervisor, see Defendants' Appendix at 340, and these claims are therefore barred.
In the same manner, the Equal Pay Act, a subsection of the Fair Labor Standards Act, 29 U.S.C. § 201 et seq., is subject to a two-year limitations provision for non-willful violations. See 29 U.S.C. § 255. Because, as discussed below, Meisner has not shown a "willful" violation of this Act, his Equal Pay Act claims accruing before October 24, 1995 are subject to a two-year statute of limitations and are therefore barred. 29 U.S.C. § 255 (a); Cox v. Brookshire Grocery Company, 919 F.2d 354, 355-56 (5th Cir. 1990).
C. Discriminatory Termination
Title VII prohibits an employer from failing or refusing to hire or discharge an individual "because of such individual's race, color, religion, sex, or national origin." Brown v. Bunge Corporation, 207 F.3d 776, 781 (5th Cir. 2000) (quoting 42 U.S.C. § 2000e-2 (a)(1)). Under Title VII, Meisner must first establish a prima facie case of discrimination. Brown, 207 F.3d at 781 (citing McDonnell Douglas Corporation v. Green, 411 U.S. 792, 802 (1973)). To establish this prima facie case, Meisner must prove that he is a member of a protected class , that he was qualified for the position that he held, that he was discharged, and that after his discharge he was replaced with a person who is not a member of the protected class. Brown, 207 F.3d at 781.
Here, the defendants argue that because Meisner was not terminated but voluntarily resigned, he has no claim, under any statute he pleads, arising from his August 1, 1997 departure from the GAG. Defendants' Brief at 19. In response, Meisner argues (however briefly) that his resignation constituted a constructive discharge. E.g., Plaintiff's Appendix at (1)4, 6-7; Plaintiff's Brief at 9-10. When an employee resigns, as Meisner did, he may satisfy the discharge requirement by proving constructive discharge. Brown, 207 F.3d at 782. "To show constructive discharge, an employee must offer evidence that the employer made the employee's working conditions so intolerable that a reasonable employee would feel compelled to resign." Barrow v. New Orleans Steamship Association, 10 F.3d 292, 297 (5th Cir. 1994). Whether a reasonable employee would feel compelled to resign depends on the facts of each case, but the Fifth Circuit considers the following factors relevant, singly or in combination: (1) demotion; (2) reduction in salary; (3) reduction in job responsibilities; (4) reassignment to menial or degrading work; (5) reassignment to work under a younger supervisor; (6) badgering, harassment, or humihation by the employer calculated to encourage the employee's resignation; or (7) offers of early retirement on terms that would make the employee worse off whether the offer was accepted or not. Id.; also Ward v. Bechtel Corporation, 102 F.3d 199, 202 (5th Cir. 1997) (utilizing Barrow factors in a Title VII situation).
As Meisner's Appendix is numbered 1-10, 1-255, this court will indicate it is referring to the first numbered series by placing (I) in front of the number.
Meisner asserts that he resigned because his working conditions were "intolerable" and because he had not been evaluated for over four years. Plaintiff's Appendix at 5. He also asserts that he was not provided with adequate litigation support while he was the only attorney in his unit. Id. at 16. Thus, Meisner seems to be relying on only the sixth of the Barrow factors to support his contention that he was constructively discharged. Although the court understands that the constructive discharge analysis involves a fact-intensive inquiry, it also recognizes that the Fifth Circuit previously has held that a plaintiff did not prove constructive discharge even when he had "clearly proved two of the constructive discharge factors." Brown, 207 F.3d at 782.
After reviewing the record, this court concludes that even if it were to assume that Meisner's one factor standing alone, if sufficiently pled, could establish his constructive discharge, it is not convinced that his pleadings, much less his proof, suffice to show the "harassment" required by Fifth Circuit precedent. See, e.g., McCann v. Litton Systems, Inc., 986 F.2d 946, 952 (5th Cir. 1993) (finding no constructive discharge when the plaintiff was given the option — in the midst of a company-wide reduction in force — of either retiring or transferring to a new and "not well defined" position at a 12% pay cut, under the supervision of a man half his age); Jurgens v. Equal Employment Opportunity Commission, 903 F.2d 386, 393 (5th Cir. 1990) ("However, without continuing harassment or repeated discriminatory impediment to any advance. . ., dimmed future job prospects based upon the employer's past discrimination in promotions are not alone enough to support a finding of constructive discharge.") (citation omitted); Jett v. Dallas Independent School District, 798 F.2d 748, 752, 755 (5th Cir. 1986) (finding no constructive discharge after the plaintiff was demoted "with much sorrow and humiliation" from his job as high school football coach and transferred to another school), aff'd in part and remanded in part on other grounds, 491 U.S. 701 (1989).
Meisner was not demoted, did not lose salary, and was not placed under another managing attorney's supervision. Meisner does not gainsay the fact that Mantilla and Collins offered him some assistance for his personnel shortages in the spring/summer of 1997, even if it was not all of the relief that he requested. Defendants' Brief at 22. Finally, it is also undisputed that Meisner demanded, as a "settlement" of his claims once he resigned, either $400,000-$500,000 with "reinstatement" or $800,000 without reinstatement. Defendants' Brief at 13; Plaintiff's Appendix at (1)2. This indicates to the court that Meisner's working conditions were not so "intolerable" that he had no thoughts of ever returning, if the price were right. The court concludes that the evidence of record does not support Meisner's claim that he was constructively discharged, but instead indicates that Meisner resigned, perhaps too hastily, once he concluded he would not receive a pay raise. As Meisner's "failure to raise a fact question as to whether [he] suffered an adverse employment action is dispositive of [his] Title VII discrimination claim," Ward, 102 F.3d at 202 n. 1, the court need not consider the defendants' other arguments.
D. Discriminatory Selection Decisions
Meisner next charges (in his Appendix, but not in his Complaint) that Coleman was appointed Area IV Manager, Collins was appointed Area IV Special Counsel, Mantilla was appointed Area IV Manager, Diaz-Hartline was appointed Managing Attorney for Units 411 and 403, and Bonita Minor was appointed Managing Attorney for Unit 411, all because of their minority race and (except for Mantilla) female gender. See, e.g., Plaintiff's Appendix at 6, 8, 13, 16, 21. According to Meisner, "[t]hese discriminatory actions unilaterally changed my condition of employment." Defendants' Brief at 23 (quoting Meisner's October 8, 1997 "affidavit" at 16-17). However, because Meisner does not claim to have applied for any of these positions, these selections cannot support a Title VII claims for acts of discrimination against him. Haynes v. Pennzoil Company, 207 F.3d 296, 301 (5th Cir. 2000) ("The record supports [defendant's] contention that this attorney position did not become available until after [plaintiff] had been discharged. Thus, [plaintiff] has failed to establish a prima facie case of racial discrimination under Title VII, because he was unable to demonstrate that he applied and was qualified for any of the legal positions available [with defendant]."). The court also notes that, beyond his own speculation, Meisner has not provided any evidence to support his allegations that these selections were somehow discriminatory. "[A]n employee's subjective belief that [he] was the victim of discrimination does not create an issue of material fact for trial." Caro v. City of Dallas, 17 F. Supp.2d 618, 626 (N.D. Tex. 1998) (Fish, J.)
E. Discriminatory Adverse Employment Decisions
In amongst his long litany of complaints about his job are Meisner's allegations that the OAG and (after October 1, 1996) Mantilla personally, discriminated against him on the basis of his race and gender by (1) failing to evaluate him after 1993; (2) giving him a one-step instead of a two-step raise after his "overall outstanding" evaluation in 1993; (3) selecting him as managing attorney at a salary lower than that of his minority and female managing attorneys in Area IV; (4) transferring DiazHartline to his unit without his consent; (5) paying Diaz-Hartline a higher salary while she was under his supervision; (6) refusing to discipline Diaz-Hartline as he demanded; (7) paying unit manager Merino a higher salary than Meisner; and (8) depriving him in 1997 of the resources necessary to do his job, specifically by (a) transferring Merino to another unit and not replacing him; (b) Collins' refusal to forward Meisner's raise recommendation for an attorney in his unit; and (c) failing to hire replacements to fill attorney vacancies in the spring and summer of 1997 and to assist him with his increased docket. See generally Plaintiff's Appendix at 1-33. The court has construed these as allegations of disparate treatment prohibited by Title
VII.
The elements and evidentiary framework for a Title VII disparate treatment claim are well known. First, unless Meisner has direct evidence of discrimination, he must establish a prima facie case. Caro, 17 F. Supp.2d at 624 n. 2. The prima facie elements of a disparate treatment claim for race or sex discrimination are: (I) that Meisner was a member of a protected group (male or European-American); (2) that he was qualified for his position; (3) that he was dismissed or suffered an adverse employment action; and (4) that the defendants sought to replace him with a similarly qualified non-white/female employee. Id. at 624-25 (citing Ward, 1102 F.3d at 202). If Meisner succeeds in making out a prima facie case under Title VII, the burden of production shifts to the employer to articulate legitimate nondiscriminatory reasons for the complained of actions on the part of the employer. Caro, 17 F. Supp.2d at 624 n. 2.
After reviewing the record and Meisner's lengthy series of affidavits, the court finds that the defendants have provided ample reasonable nondiscriminatory justifications for each of the actions and omissions about which Meisner complains. Most importantly, it appears that the failure to timely evaluate attorneys was a problem throughout the GAG and the Child Support division, resulting primarily from supervisors' not being able to spare the time from other pressing duties. The defendants have also provided substantial evidence that there was no racial or gender pattern in the failure to timely evaluate Child Support attorneys. For instance, of the seven managing attorneys Mantilla did not evaluate for fiscal year 1997, five were black or Hispanic and three were female. Defendants' Brief at 28. Moreover, Collins had completed part of her evaluation of at least one white male managing attorney before Meisner's resignation, but as of that date had not completed her assessment of at least one black female and one Hispanic. Id. Meisner would have this court conclude that because he was not evaluated in a timely fashion, and because he was a white male, he was not evaluated in a timely fashion because he was a white male. There is simply no evidence in the record to support this conclusion.
The same holds true for Meisner's other disparate treatment allegations. Even if it is assumed that some of these claims are not time-barred, Meisner has produced no evidence that his one-step merit increase was altered from a two-step increase because of his race, or that actions taken involving Diaz-Hartline ( i.e., her salary, her transfer, the defendants' refusal to discipline her) were motivated by racial, ethnic, or gender animus toward Meisner. "[D]iscrimination laws are not vehicles for judicial second-guessing of business decisions.'. . . Whether the employer's decision was the correct one, or the fair one, or the best one is not a question within the jury's province to decide." Deines v. Texas Department of Protective and Regulatory Services, 164 F.3d 277, 281 (5th Cir. 1999) (quoting Walton v. Bisco Industries, Inc., 119 F.3d 368, 372 (5th Cir. 1997)). Furthermore, Meisner has provided no evidence that the delay in replacing Memo was the result of intentional discrimination, as opposed to simply bureaucratic inertia. The overwhelming tenor of this case is simply that Meisner's speculations do not undermine the credibility of the defendants' justifications for the actions they took; much less do they show that these justifications were a pretext for discrimination.
F. Vicarious Liability
In many of his allegations against Mantilla, Meisner seeks to hold him responsible for acts, omissions and decisions by people above and below Mantilla in the chain of command: e.g., for Collins' failure to finish her part of Meisner's evaluation before July 31, 1997; for Collins' refusal to forward Meisner's raise recommendation for Lessard; for Collins' failure to attend a joint interview of an attorney applicant; and for the failure of unknown officials above Mantilla to quickly approve Meisner's choice to replace Merino. See Plaintiff's Appendix at 8-9. However, "[S]upervisory officers, like [Mantilla], cannot be held liable under § 1983 for the actions of subordinates. . . on any theory of vicarious liability." Alton v. Texas AM University, 168 F.3d 196, 200 (5th Cir. 1999). Rather, "a supervisory official may be liable under § 1983," for the conduct of others, only "if that official demonstrates a deliberate indifference to a plaintiff's constitutionally protected rights." Id. Meisner has not shown that deliberate indifference here.
G. Equal Pay Act
To establish a prima facie case under the Equal Pay Act, Meisner must show: (1) his employer is subject to the Act; (2) he performed work in a position requiring equal skill, effort, and responsibility under similar working conditions; and (3) he was paid less than the employee of the opposite sex providing the basis of comparison. Chance v. Rice University, 984 F.2d 151, 153 (5th Cir. 1993); also Jones v. Flagship International, 793 F.2d 714, 722 (5th Cir. 1986) ("Under the Equal Pay Act, the plaintiff has the burden of proof to show that an employer pays different wages to employees of opposite sexes for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions.") (internal quotations marks and citation omitted), cert. denied, 479 U.S. 1065 (1987). If Meisner meets this burden, the burden of proof shifts to the defendants to show that the differential is justified under one of the Act's four exceptions. Jones, 793 F.2d at 722. One of the Act's exceptions is where unequal payment is made pursuant to "a differential based on any other factor other than sex. ... 29 U.S.C. § 206 (d)(l)(iv). The court concludes that even if Meisner could make a prima facie case here, which is doubtful, the defendants have carried their burden of showing relevant legitimate determining factors other than sex, as they have provided ample evidence explaining Diaz-Hartline's higher salary. See, e.g., Chance, 984 F.2d at 153 n. 10 (citing evidence that the plaintiff's credentials were less impressive than those of her colleagues).
III. CONCLUSION
Meisner's pleadings and submissions are rife with complaints about the mistreatment he received while working for the defendants. What they lack, however, is proof that any of this alleged mistreatment had a discriminatory motive. "Other than causing a significant waste of judicial resources at the trial and appellate levels and causing the parties to expend considerable financial resources in further litigation, nothing would be gained by postponing the inevitable." Casiano v. ATT Corporation, 213 F.3d 278, 287 (5th Cir. 2000) (affirming summary judgment for defendant in Title VII suit). For the above reasons, the defendants' motion for summary judgment is GRANTED on all of Meisner's claims. Judgment will be entered that Meisner take nothing from the defendants.
SO ORDERED.