Opinion
Civil Action No. 3:02-CV-1938-M.
July 19, 2004
MEMORANDUM OPINION AND ORDER
Before the Court is the Motion for Summary Judgment filed by Parkland Health Hospital Systems ("Defendant") on May 3, 2004. Plaintiff did not respond. After consideration of the Motion, the summary judgment evidence, and the applicable law, the Court GRANTS summary judgment in favor of Defendant on all of pro se Plaintiff David E. Williams's claims.
Plaintiff filed this lawsuit against "Parkland Heath Hospital Systems, Parkland Memorial Hospital." Defendant points out in its Motion that "Parkland Memorial Hospital" was Defendant's former name, and that Defendant is correctly referred to as "Dallas County Hospital District, doing business as Parkland Health Hospital System."
BACKGROUND
In 1991, Defendant hired Plaintiff, who is an African-American male, as a biomedical technician. Plaintiff remained employed by Defendant until he was terminated on January 31, 2002. Plaintiff filed this action on September 6, 2002, and amended his Complaint on December 5, 2003. He asserts claims of discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"), retaliation for exercising his First Amendment right of free speech, and violations of his substantive and procedural due process rights. Specifically, Plaintiff alleges that he was terminated because of his race and in retaliation for filing various Equal Employment Opportunity Commission ("EEOC") charges of discrimination and internal complaints during the course of his employment. Defendant now moves for summary judgment on all of Plaintiff's claims, contending that Plaintiff was properly terminated as a result of his belligerent and abusive behavior towards his coworkers.
Plaintiff's First Amended Complaint also asserts a separate cause of action against Defendant for violating Defendant's policy and procedures. This claim does not state a cognizable cause of action. The Court therefore will dismiss this claim as a matter of law.
ANALYSIS
A. Summary Judgment Standard
Under Fed.R.Civ.P. 56(c), summary judgment is appropriate when the pleadings and record evidence show that no genuine issue of material fact exists and that, as a matter of law, the movant is entitled to judgment. Little v. Liquid Air. Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). "[T]he substantive law will identify which facts are material." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Only disputes about those facts will preclude the granting of summary judgment. Id. In a motion for summary judgment, the burden is on the movant to prove that no genuine issue of material fact exists. Latimer v. Smithkline French Labs., 919 F.2d 301, 302 (5th Cir. 1990). If the moving party meets this initial burden, then the burden shifts to the nonmovant, who must produce evidence establishing a genuine issue of material fact for trial.Celotex Corp. v. Catrett, 477 U.S. 321-22, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Furthermore, if the nonmoving party fails to make a showing sufficient to establish the existence of an element essential to his case, and on which he bears the burden of proof at trial, summary judgment is mandatory. Id. at 322-24. The record must be considered in the light most favorable to the nonmovant.Anderson, 477 U.S. at 248, 106 S.Ct. 2505; Harrison v. Byrd, 765 F.2d 501, 504 (5th Cir. 1985). However, bare allegations in briefs and pleadings are insufficient to withstand summary judgment. Alizadeh v. Safety Stores, Inc., 802 F.2d 111, 113 (5th Cir. 1986).
A motion for summary judgment cannot be granted simply because there is no opposition. Hibernia Nat'l Bank v. Administracion Central Sociedad Anonima, 776 F.3d 1277, 1279 (5th Cir. 1985). However, if the nonmovant fails to provide a response identifying the disputed issues of fact, the Court may accept the movant's description of the facts as prima facie evidence of its entitlement to summary judgment. Eversly v. MBank Dallas, 843 F.2d 172, 173-74 (5th Cir. 1999). Further, "the Court has no duty to search the record for triable issues." Colbert v. Lone Star Park at Grand Prairie, No. 3:01-CV-2321-P, 2003 WL 21517820, at *3 (N.D. Tex. Apr. 15, 2003) (Solis, J.) (citing Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998)).
B. Plaintiff's Title VII Claims
1. Timeliness
Defendant contends that Plaintiff's Title VII discrimination and retaliation claims are barred because Plaintiff did not satisfy Title VII's requirement that a litigant file his lawsuit within ninety days upon receiving a right-to-sue letter from the EEOC.
On June 5, 2002, the EEOC mailed Plaintiff two right-to-sue letters. Plaintiff does not state in his Complaint when he received them. When the receipt date of a right-to-sue letter is unknown, courts in this circuit presume a receipt date ranging from three to seven days after the letter was mailed. See Taylor v. Books A Million, Inc., 296 F.3d 376, 379-80 (5th Cir. 2002). Applying this rule to the present case, the Court presumes that, at the earliest, Plaintiff received the right-to-sue letters on June 8, 2002. Plaintiff filed this lawsuit ninety days later, on September 6, 2002. Accordingly, the Court finds that Plaintiff's Title VII claims are timely.
Because Texas provides state administrative mechanisms to address complaints of employment discrimination, a Title VII plaintiff must file a charge of discrimination within 300 days of the allegedly discriminatory conduct. See 42 U.S.C. § 2000e-5(e)(1); see also Messer v. Meno, 130 F.3d 130, 134 n. 2 (5th Cir. 1997). A Title VII plaintiff may nonetheless be able to assert a claim based on otherwise untimely conduct if he can demonstrate that the conduct is part of a continuing violation. See Berry v. Bd. of Supervisors, 715 F.2d 971 (5th Cir. 1983).
Here, Plaintiff brings his Title VII claims pursuant to right-to-sue letters he received in response to charges of discrimination he filed on December 28, 2001 and February 25, 2002. Thus, Plaintiff is precluded from asserting any Title VII claims based on conduct occurring on or before March 2, 2001, 300 days prior to the December 28, 2001 filing, unless the evidence establishes the existence of a continuing violation. The Court concludes that the evidence does not establish a continuing violation. To so prove, a "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 v. Moore, 142 F.3d 233, 239 (5th Cir. 1998) (internal citations omitted).
Plaintiff's allegations of discriminatory acts are limited to the following. In his December 28, 2001 charge of discrimination, Plaintiff asserts that he was "harassed by being subjected to racial slurs/comments" beginning around April 1, 2001. Plaintiff does not state who initiated the harassment or detail any specific instances of harassing or discriminatory behavior. In the December 28 charge, Plaintiff also states that he received verbal and written warnings, apparently regarding his job performance, which he alleges were motivated by discriminatory and retaliatory intent. Plaintiff does not provide any facts supporting this allegation. In his February 25, 2002 charge, Plaintiff states that he was terminated on January 31, 2002, and alleges that his termination resulted from discriminatory and retaliatory animus. Plaintiff does not provide any facts supporting this allegation. In addition to filing the 2001 and 2002 charges of discrimination, Plaintiff testified at his deposition that he filed charges of discrimination in 1993 and 1999. Plaintiff also testified he was discriminated or retaliated against (1) in 1993, when his supervisor completed a report regarding Plaintiff's alleged verbal harassment of other employees; (2) in 1995 or 1996, during the course of a confrontation between Plaintiff and a supervisor; (3) in 1999, when a supervisor reported Plaintiff to the police after Plaintiff allegedly threatened him; and (4) in December of 2001, after Plaintiff complained to his supervisors about a poster of a monkey, bearing Plaintiff's initials, which was displayed in the workplace. In addition, Plaintiff testified in his deposition, without providing any details, that he was subjected to continuing and ongoing harassment.
These several incidents, over the course of almost ten years, do not constitute the requisite "organized scheme" of a discriminatory practice to constitute a continuing violation. Plaintiff is therefore barred from asserting any Title VII claims arising from conduct occurring on or before March 2, 2001.
2. Title VII Framework
The Court must next address Plaintiff's Title VII claims arising from conduct occurring after March 2, 2001. Title VII prohibits an employer from discriminating against "any individual with respect to [his or her] compensation, terms, conditions, or privileges of employment, because of such individual's race. . . ." 42 U.S.C. § 2000e-2(a)(1). Title VII also prohibits an employer from retaliating against an employee for engaging in statutorily protected activity. 42 U.S.C. § 2000e-3(a). In reviewing Title VII claims, courts apply the burden-shifting framework applied by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1990). Under this framework, a plaintiff must first establish a prima facie case of discrimination or retaliation. If the plaintiff satisfies this burden, the burden of production shifts to the employer to provide a legitimate, non-discriminatory reason for its employment decision. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000). Once the employer produces a legitimate, non-discriminatory reason for its decision, the burden shifts back to the plaintiff to establish that the employer's proffered reason is merely pretextual. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 507 (1993). The ultimate burden of persuading the trier of fact that the employer discriminated against the plaintiff remains at all times with the plaintiff. Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981).
a. Plaintiff's Title VII Discrimination Claim
In order to establish a prima facie case of race discrimination, a plaintiff must show that he (1) is a member of a protected class; (2) was qualified for his position; (3) was subject to adverse employment action; and (4) was replaced by someone outside the protected class, or was treated differently from similarly situated persons. Okoye v. Univ. of Tex. Houston Health Science Ctr., 245 F.3d 507, 512-13 (5th Cir. 2001).
Here, Plaintiff is a member of a protected class who was subject to an adverse employment action — his January 31, 2001 termination. However, Plaintiff has presented no evidence that he was qualified for his position or that he was replaced by someone outside the protected class or was treated differently from similarly-situated persons. Thus, Plaintiff does not make out a prima facie case of race discrimination. Even if Plaintiff could make out a prima facie case, Plaintiff's discrimination claim would nonetheless fail because Defendant has presented evidence of a legitimate, non-discriminatory reason for Plaintiff's termination, and Plaintiff has made no effort to rebut it. Specifically, Defendant points to the affidavit of one of Plaintiff's supervisors, which establishes that Plaintiff had an anger management problem that was repeatedly identified during his annual performance evaluations and that ultimately led to his termination. According to the affidavit, on December 18, 2001, Plaintiff engaged in a verbal altercation in the medical laboratory with a coworker, during which Plaintiff used loud and abusive language. Plaintiff received a written warning for his participation in the incident, which stated that any similar incidents would result in his termination. The affidavit further states that on January 31, 2002, Plaintiff engaged in a verbal altercation with another coworker, in which Plaintiff used abusive language; as a result, Plaintiff was terminated. Because Plaintiff has not presented any evidence that Defendant's non-discriminatory reason was pretextual, Plaintiff cannot satisfy his burden. Accordingly, the Court finds that Defendant is entitled to summary judgment on Plaintiff's discrimination claim.
Plaintiff appears also to allege that Defendant retaliated against him by issuing warnings to Plaintiff regarding his work performance. The Court concludes that such warnings do not constitute adverse employment action under Title VII. See Dupont-Lauren v. Schneider (USA), Inc., 994 F. Supp. 802, 824 (S.D. Tex. 1998) (noting that being placed on final warning does not constitute adverse employment action under Title VII).
The written warning is attached to the affidavit of Robert Mitcham as an exhibit.
b. Plaintiff's Title VII Retaliation Claim
To establish a prima facie case of retaliation, a plaintiff must show that (1) he engaged in an activity protected under Title VII; (2) an adverse employment action occurred; and (3) there is a causal connection between the protected activity and the adverse employment action. Manning v. Chevron Chem., LLC, 332 F.3d 874, 883 (5th Cir. 2003).
The evidence establishes a prima facie case of retaliation. Plaintiff engaged in protected activity when he filed his December 28, 2001 charge of discrimination. He suffered adverse employment action when he was terminated on January 31, 2002. The requisite causal link is satisfied because the filing of the December 28, 2001 charge is in close proximity to Plaintiff's termination. See Evans v. City of Houston, 246 F.3d 344, 354 (5th Cir. 2001) (noting that time lapse of up to four months has been found sufficient to establish prima facie case of causation for retaliation claim). Plaintiff's retaliation claim nonetheless fails, however, because Defendant has presented evidence of a legitimate, non-discriminatory reason for Plaintiff's termination, which Plaintiff has made no effort to rebut. Again, Defendant points to the affidavit of one of Plaintiff's supervisors, which states that Plaintiff was terminated for initiating an altercation with a coworker after receiving a final warning regarding his abusive behavior towards his coworkers. Because Plaintiff has not presented any evidence that Defendant's non-discriminatory reason was pretextual, Plaintiff cannot satisfy his burden. Accordingly, the Court finds that Defendant is entitled to summary judgment on Plaintiff's Title VII retaliation claim.
Plaintiff also testified at his deposition that Defendant retaliated against him for complaining to his supervisors about the monkey poster bearing Plaintiff's initials. Because the Court concludes that Plaintiff cannot carry his ultimate burden on his retaliation claim, the Court need not address whether this complaint constitutes protected activity under Title VII.
C. Plaintiff's First Amendment Retaliation Claim
Plaintiff also alleges that he was terminated in retaliation for exercising his right of free speech under the First Amendment. It is well-established that a public employee may not be retaliated against for exercising his right to free speech. See Thompson v. City of Starkville, 901 F.2d 456, 460 (5th Cir. 1990). To establish a First Amendment retaliation claim, a plaintiff must show that (1) he suffered an adverse employment action; (2) his speech involved a matter of public concern; (3) his interest in commenting on the matters of public concern outweighs the public employer's interest in promoting efficiency; and (4) his speech was a motivating factor for the adverse employment action. Bradshaw v. Pittsburg Indep. Sch. Dist., 207 F.3d 814, 815-16 (5th Cir. 2000). If the plaintiff carries this burden, the employer may nonetheless defeat the plaintiff's claim if it demonstrates by a preponderance of the evidence that it would have taken the same action even in the absence of the protected conduct. Lukan v. North Forest Indep. Sch. Dist., 183 F.3d 342, 346 (5th Cir. 1999).
While Plaintiff does not state the statutory grounds for this claim, such a claim is properly brought under 42 U.S.C. § 1983.
Defendant concedes in its Motion that it is a unit of local government of the State of Texas; therefore, the Court concludes that Defendant is a public employer for purposes of Plaintiff's constitutional claims.
Here, Plaintiff suffered an adverse employment action when he was terminated on January 31, 2002. However, assuming that Plaintiff's relevant speech — his December 28, 2001 charge of discrimination, a December 18, 2001 letter to his supervisors regarding an altercation between himself and a coworker, and his December 2001 complaint to his supervisors regarding the monkey poster — constitutes a matter of public concern, his First Amendment claim nonetheless fails because Plaintiff has presented no evidence that his speech was a motivating factor in his termination. Plaintiff's deposition testimony contains only conclusory allegations that he was terminated in retaliation for exercising his First Amendment rights. The Court finds these allegations insufficient, and concludes that Plaintiff has not demonstrated that his protected speech, if any, was a motivating factor in Defendant's decision to terminate him. Accordingly, the Court grants Defendant's Motion as to Plaintiff's First Amendment retaliation claim.
The Court considers only these three statements. While Plaintiff filed other EEOC charges prior to the December 28, 2001 charge, none of these charges are before this Court, and therefore the Court cannot consider their content. In addition, the Court need not consider the February 25, 2002 charge or the January 31, 2002 correspondence attached to the First Amended Complaint, because both communications occurred after Plaintiff was terminated.
D. Plaintiff's Due Process Claims
In addition, Plaintiff alleges that he was terminated in violation of his substantive and procedural due process rights.
As with Plaintiff's First Amendment retaliation claim, Plaintiff does not state the statutory basis for his due process claims. However, such claims can be properly asserted under 42 U.S.C. § 1983.
The Constitution protects against deprivations of life, liberty, or property without due process or due course of law.See, e.g., Gaumond v. City of Melissa, 227 F. Supp. 2d 627, 630-31 (E.D. Tex. 2002). However, an individual is entitled to constitutional protection only if he can show an arbitrary and capricious deprivation of a property right or a liberty interest.See Moulton v. City of Beaumont, 991 F.2d 227, 230 (5th Cir. 1993). Thus, in order for a plaintiff to succeed on a substantive due process claim in the public employment context, he must show that (1) he had a property interest/right in his employment and (2) the public employer's termination of that interest was arbitrary and capricious. See Harrington v. Harris, 118 F.3d 359, 368 (5th Cir. 1997). The Constitution does not create property interests; rather, the existence of such interests is determined by reference to state law. See Bishop v. Wood, 426 U.S. 341, 344 (1976). Thus, because Plaintiff was employed by Defendant in Texas, this Court must look to Texas law to determine whether a property right was created. Texas is an employment-at-will state.See Moulton, 991 F.2d at 230. Absent a specific contract to the contrary, employment is terminable at will by either party.Id. Thus, in order for Plaintiff to prevail, he must show the existence of such a contract.
Here, Plaintiff has not pled the existence of an employment contract, nor is there any evidence that such a contract, either express or implied, existed between the parties. Accordingly, the Court concludes that Plaintiff cannot prevail on his substantive due process claim, and therefore grants Defendant's Motion for Summary Judgment as to this claim.
Nor can Plaintiff prevail on his procedural due process claim. Procedural due process entitles a public employee with an established property right in his employment to notice of the charges against the employee, explanations of the employer's evidence, and an opportunity to present the employee's position.See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 541, 546 (1985). As discussed previously, whether an employee has a property right in his continuing employment is determined by reference to state law. Here, Plaintiff has not demonstrated that Texas law creates such a right in his case; thus, whether Plaintiff was afforded proper process is not a constitutional issue. The Court therefore grants Defendant's Motion as to Plaintiff's procedural due process claim.
Defendant also argues that if Plaintiff were otherwise able to prevail on his claims, his recovery would be limited under the after-acquired evidence doctrine. See McKennon v. Nashville Banner Publishing Co., 513 U.S. 352, 362 (1995). Because the Court concludes that Plaintiff cannot prevail on any of his claims, the Court need not address this argument.
CONCLUSION
For the reasons stated above, the Court GRANTS Defendant's Motion for Summary Judgment in its entirety, and therefore DISMISSES WITH PREJUDICE Plaintiff's claims against Defendant. A separate Judgment will be entered.SO ORDERED.