Opinion
Civil Action No. SA-98-CA-0976-OG.
September 29, 1999.
REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE
TO: ORLANDO L. GARCIA United States District Judge
Pursuant to the order of referral in the above-styled and numbered cause of action to the undersigned United States Magistrate Judge and consistent with the authority vested in United States Magistrate Judges under the provisions of 28 U.S.C. § 636(b)(I)(B) and rule 1(d) of the Local Rules for the Assignment of Duties to United States Magistrates, effective January 1, 1994, in the Western District of Texas, the following report is submitted for your review and consideration.
Docket no. 14.
I. JURISDICTION
The Court has federal question jurisdiction. 28 U.S.C. § 1331 and 1343.
II. STATEMENT OF FACTS
Plalntiff, Sylvia Zambrano, has filed this lawsuit alleging that defendant, Northside Independent School District, (the "District" or "Defendant") discriminated against her because of her national origin (Hispanic), and gender in violation of 42 U.S.C. § 1981 and Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e. Plaintiff's specific gender discrimination complaint alleges hostile work environment based on sexual harassment. She also contends that defendant violated her rights to equal protection, due process, and freedom of speech under both the United States and Texas Constitutions. Plaintiff further alleges that defendant violated 42 U.S.C. § 1983, retaliated against her in violation of Title VII and the Texas Whistleblower Act, and intentionally caused her emotional distress. Specifically, plaintiff alleges defendant is vicariously liable for the discriminatory conduct of her immediate supervisor. Balis Dailey ("Dailey"), the District's Director of Maintenance. Dailey's discriminatory conduct included racial or ethnic epithets, a derogatory remark in reference to a school board trustee, the improper viewing of pornography on District computers, sexual overtures directed at plaintiff, and harassing conduct which occurred subsequent to plaintiff's rebuffing of Dailey's overtures. After lodging complaints with District personnel regarding these incidents and about Dailey's use of work hours and District resources to conduct personal business, plaintiff alleges defendant retaliated by removing her from and advertising her secretarial position as vacant. She is seeking declaratory and injunctive relief, monetary damages, including punitive damages, attorney's fees, and costs.
Docket no. 1 at 4.
Id.
Id. at 6.
Id.
Id. at 4.
Id. at 4-5.
Docket no. 1 at 5-6.
Id. at 7-8.
The uncontested facts in this case reflect that, with the exception of one year, plaintiff has worked for defendant as a classified employee since 1985. As such, plaintiff is a noncontractual, at-will employee with no specific term of employment or property right in her employment and who is subject to reassignment when deemed in the best interest of the District. At the time the alleged discrimination occurred, plaintiff was the secretary to Dailey in the Maintenance Department. Plaintiff complains that from December 1996 to May 1998, Dailey uttered three racial or ethnic epithets, described a school board trustee in a derogatory manner, looked at pornography on his officer computer, directed three sexual overtures at her, and harassed her to the point that her work environment became hostile.
Docket no. 16, Exhibit A to Exhibit 1 at 17, 19.
Docket no. 16, Exhibits A, B, and C to Exhibit 3 at 3, 5.
Docket no. 16, Exhibit A to Exhibit 1 at 19.
Id. at 81-85, 87-89, 92-104, 107-108, 113-17, 120, 131-39.
The first derogatory comment occurred in December 1996 when Dailey returned to work after jury duty. In plaintiff's presence, Dailey referred to a fellow jury member as a "nigger." The jury member was not present. Plaintiff did not voice an objection to the term, but Dailey did apologize and plaintiff never heard him repeat the term. The next comment occurred on April 24, 1997, when Dailey was asked what he felt like eating for lunch that day and he responded, "I feel like having me a Mexican." Again, plaintiff did not tell Dailey she found his comment offensive. Dailey's third remark occurred during a staff meeting on May 6, 1997, when he referred to a female school board member as "the tank." Plaintiff corrected Dailey, told him the member's name, and said she (plaintiff) was offended. Dailey agreed his remark was inappropriate and did not use the term again. The final comment was made in March 1998 while Dailey was discussing a maintenance conference he had attended. Dailey described a person at the conference as wearing "Pachuco" shoes. Plaintiff interpreted this comment as a slang reference to the type of shoes a Hispanic person would wear. Plaintiff did not tell Dailey that she took offense at this comment and he did not repeat the term. Plaintiff lodged her first verbal complaint with the District regarding these four derogatory comments on April 13, 1998, and filed a formal written complaint on June 5, 1998.
Id. at 81-83.
Id. at 84.
Docket no. 16, Exhibit A to Exhibit 1 at 67-68, 84.
Id. at 84-85, 87.
Id. at 67-68.
Id. at 89-91.
Id. at 92-94.
Id.
Id. at 94.
Id.
Id.
Id. at 96-97.
Docket no. 16, Exhibit 2 at 4.
Docket no. 16, Exhibit A to Exhibit 1 at 88; Exhibit 2 at 4.
The two incidences of Dailey viewing pornography on the District's computer occurred in July of 1997. Both times plaintiff observed Dailey viewing the pornography when she entered his office for District business Dailey did not invite plaintiff to view the pornography, and, in fact, he tried unsuccessfully to shut down the program. Around this same time period, other employees observed Dailey viewing pornography on his computer. On July 29, 1997, plaintiff complained to Pascual Gonzalez about the situation, and he in turn reported it to Jim Martin, Executive Director of Facilities Operations, who is Dailey's immediate supervisor. After an investigation, Dailey was informed the District would not tolerate any inappropriate use of District equipment and he was not subsequently reported by maintenance department personnel for such inappropriate use of his office computer.
Docket no. 16, Exhibit A to Exhibit 1 at 115.
Id. at 114, 116.
Id. at 114.
Docket no. 16, Exhibit 2 at 5.
Gonzalez's position with the District is not clear from the record.
Docket no. 16, Exhibit 4 at 1, 3. See note 107, below.
Id. at 3-4, Exhibit A to Exhibit 1 at 117, Exhibit 2 at 5-6.
As to the three sexual overtures, plaintiff asserts the first occurred in December 1996 when she returned to work after taking off time for Christmas shopping. Dailey commented, "Well, maybe one day we could take the day off together and maybe we could go shopping or do something." Plaintiff did not tell Dailey she was offended by his words. In October 1997, Dailey allegedly invited plaintiff to accompany him to a conference in New Orleans. Dailey did not explain why he wanted plaintiff to go to this conference with him and she did not ask. When plaintiff told him no, Dailey said, "No? What do you mean no?" Based on Dailey's office mannerisms, such as the way he looked at her and winking his eye, plaintiff was uncomfortable with the implication in the invitation. After this incident, Dailey began to criticize plaintiff's work, making her feel incompetent.
Docket no. 16, Exhibit A to Exhibit 1 at 99.
Id.
Id.
Id. at 102-104.
Docket no. 16, Exhibit A to Exhibit 1 at 103.
Id.
Id. at 107.
Id. at 109.
The final incident occurred at a lunch in March 1998. Plaintiff and Dailey had gone to lunch together and, as they were leaving the restaurant, Dailey put his arm around her and said, "You know, Sylvia, when we go out to eat like this, you don't have to call me Mr. Dailey, you can call me Bud or Balis." Plaintiff pulled away from Dailey and told him, "No sir, you are my director, you are Mr. Dailey." This was the only time Dailey put his arm around plaintiff. Plaintiff did state that after this time, Dailey would come to her desk and put his hand on her shoulder. She did not tell Dailey that she found offense in his touching, looking, or winking.
Id. at 102.
Id. at 100.
Docket no. 16, Exhibit A to Exhibit 1 at 100.
Id. at 103.
Id. at 100.
Id at 101, 107.
Plaintiff's first complaint to any district official regarding Dailey was about his inappropriate use of his office computer in July 1997, which resulted in an investigation, a conference with Dailey, and a review of computer security procedures. She next complained to Martin in November 1997 about the amount of time Dailey was spending on baseball-related matters, not part of his job description, and about the criticism Dailey directed at her work. Martin agreed to talk to Dailey. After talking with Martin, Dailey acted as if he were going to slap plaintiff and remarked that he ought to take plaintiff over his knee and spank her. Plaintiff did not report Dailey's actions. Plaintiff tried to make an appointment with Martin in March 1998 to express her continuing dissatisfaction with Dailey's activities. Although Martin suggested they meet at a later time, the meeting did not occur. Other than the November complaint, plaintiff did not discuss further with Martin that she was unhappy with the situation in the Maintenance Department.
Docket no. 16, Exhibit 4 at 3.
Docket no. 16, Exhibit A to Exhibit 1 at 110.
Id.
Id. at 182.
Id. at 183.
Id. at 111.
Id.
Docket no. 16, Exhibit A to Exhibit 1 at 111.
Plaintiff next contacted Margaret Casillas, the District's Director for Human Resources/Auxiliary Personnel, in approximately March 1998 and actually met with Casillas for the first time on April 13, 1998. At this initial meeting, plaintiff complained only of Dailey's viewing pornography and of the four derogatory epithets. Realizing plaintiff had not directly reported any of these complaints to Martin, Casillas urged her to do so. Casillas immediately reported the pornography allegations to Dr. Elena Luderus, the District's Assistant Superintendent for Human Resources. Luderus informed Casillas of the previous investigation regarding Dailey and pornography. She believed, and the previous investigators confirmed, that any pornographic viewing by Dailey alter October 1997 would have to be reinvestigated. Plaintiff and two maintenance foremen confirmed that to their knowledge, the only inappropriate viewing occurred prior to that date. On April 15, Casillas informed plaintiff of the previous investigation and its outcome. Regarding the derogatory epithets, Casillas again urged plaintiff to inform Martin. Plaintiff expressed her reservations because she did not believe Martin would take action. Casillas told plaintiff she would talk to Dailey about the derogatory remarks, but because of other business concerns and her belief that this complaint was less urgent than the one regarding pornography, Casillas did not talk to Dailey immediately. She did tell him on two occasions, without specifying why, that she need to talk to him.
Id.
Docket no. 16, Exhibit 2 at 4.
Id.
Id. at 5.
Id.
Id.
Id.
Docket no. 16, Exhibit 2 at 6.
Id.
Id.
Casillas held this belief because the remarks were not directed at plaintiff and had for the most part, occurred long before plaintiff complained of them. Id.
Docket no. 16, Exhibit 2 at 6.
Id.
On May 11, 1998, plaintiff and Dailey met for approximately one and one-half hours to discuss a self-evaluation she had been asked to complete. Plaintiff tape recorded the meeting without Dailey's knowledge. During the meeting, plaintiff and Dailey each explained why they had rated plaintiff in a certain way. Dailey agreed to raise several of his lower marks to the highest score of"1." Dailey did not yell nor was he rude, although he refused to hear discussion on several items. The meeting ended before the evaluation was completed because Dailey was called to attend other business. The discussion was continued on the next day. Plaintiff did not tape record this meeting. Plaintiff contends Dailey badgered her during this meeting by forcing her to justify continuously the marks she had given herself and by refusing to give her a final evaluation. After leaving the meeting, plaintiff became dizzy, EMS was called, and she was transported to a hospital, where she was treated for an anxiety attack and then released.
Docket no. 16, Exhibit A to Exhibit 1 at 122, 131.
Id. at 131.
Id. at 133.
Id. at 135.
Docket no. 16, Exhibit A to Exhibit 1 at 132-134.
Id. at 135.
Id.
Id. at 138.
Id. at 138-39.
Id. at 146.
On May 13, Dailey and Jerry Daniel, Assistant Superintendent for Auxiliary Services, requested a meeting with Casillas regarding plaintiff. Dailey explained that on the previous day during her evaluation conference, plaintiff had become very upset and left the meeting before its conclusion. He informed Casillas that plaintiff had appeared faint and EMS had been called. Dailey further reported that plaintiff had accused him of badgering her during the conference and of giving her a hard time because she had refused to go to New Orleans with him, a situation Dailey denied. During this meeting, Casillas took the opportunity to inform Dailey of plaintiff's complaints regarding his pornographic viewing and his alleged derogatory epithets. Casillas then briefed Luderus on the situation. Casillas and Luderus discussed Daniels' request that plaintiff should not return to the Maintenance Department, and they decided plaintiff should be temporarily reassigned to the Human Resources Department pending the conclusion of an investigation.
Docket no. 16, Exhibit 2 at 6.
Id.
Id.
Id.
Docket no. 16, Exhibit 2 at 7.
Id.
Id.
Plaintiff met with Casillas on May 14, 1998. Plaintiff described the evaluation conference and claimed that Dailey had been upset since Casillas talked with him about plaintiff's complaints. Casillas explained that Dailey had not been aware of those complaints until the previous day. Plaintiff for the first time complained about Dailey's use of work time to handle non-work-related baseball activities and that Martin knew but did nothing to correct the problem. When asked, plaintiff said she had not told Casillas about the New Orleans invitation because she (plaintiff) was "in a state of denial." Casillas told plaintiff the evaluation and the allegations of sexual harassment would be investigated. Plaintiff was informed of her reassignment to the Human Resources Department until the investigation was concluded. Plaintiff did not at any time complain of the temporary transfer.
Id.
Id.
Id.
Id.
Id. at 8.
Id.
Docket no. 16, Exhibit 2 at 8.
Id.
After Dailey responded in writing to the allegations of sexual harassment, Casillas again met with plaintiff on May 22. They discussed Dailey's response and plaintiff provided the name of a woman, a former Maintenance Department employee, who had complained of Dailey's conduct. Plaintiff also saw the working copy of her evaluation which was attached to Dailey's response. Overall, the evaluation was positive and recommended plaintiff's continued employment. Plaintiff did state the evaluation was not the one Dailey had at the time of her evaluation conference. No negative evaluation was ever made part of plaintiff's employment records.
Id. at 9.
Id.
Id.
Docket no. 16, Exhibit E to Exhibit 2.
Docket no. 16, Exhibit 2 at 9.
Id.
From May 27 to June 9, Casillas interviewed the woman named by plaintiff, past and present Maintenance Department employees, and Dailey. On June 9, plaintiff for the first time informed Casillas of Dailey's threat to spank her after she complained to Martin and of the lunch encounter in March 1998. The investigation continued and on June 17, plaintiff for the first time alleged that Dailey had solicited funds from the management of Garbage Gobbler. On June 19, plaintiff for the first time informed Casillas that she had recorded the May 11 evaluation conference. Casillas was given a copy of the tape. In a report dated June 24, 1998, Casillas concluded that Dailey's conduct with respect to female employees was inappropriate and violated District policies. In the course of her investigation, Casillas also learned Dailey had violated the District's computer usage policy beginning on February 18, 1998, by again accessing pornography. She recommended that the District terminate Dailey's employment. On June 25, Dailey resigned effective June 30, 1998.
Id. at 9-12.
Docket no. 16, Exhibit 2 at 12.
Id. at 14.
Id.
Id.
Id. at 15.
Id. Computers used by plaintiff and Dailey were checked for usage in an attempt to corroborate plaintiff's allegations about Dailey's non-work-related baseball activities. Id. at 13. During this check, it became clear Dailey's computer had again been used numerous times to access pornography on the Internet beginning February 18, 1998.
Id.
Id.
During plaintiff's reassignment to the Human Resources Department, she initially worked for Casillas. Because Dailey's attorney raised objections to this arrangement, however, plaintiff was reassigned to work for Dr. Luderus. This reassignment required plaintiff to work in a work room adjacent to the kitchen/break room, an area formerly used by the secretary whom plaintiff replaced. At the Human Resources Department, plaintiff continued to perform secretarial duties similar to those she performed in the Maintenance Department. Plaintiff was not demoted and suffered no adverse effect on her salary or benefits. Shortly after the investigation started, Casillas posted plaintiff's Maintenance Department position as vacant because she believed, plaintiff would not want to return to that job. Casillas based her belief on plaintiff's numerous applications for other positions within the District, many prior to her reassignment to Human Resources.
Id. at 3; Exhibit C to Exhibit 2; Exhibit 3 at 4.
Docket no. 16, Exhibit 2 at 3; Exhibit C to Exhibit 2; Exhibit 3 at 4.
Docket no. 16, Exhibit 3 at 4.
Docket no. 16, Exhibit 2 at 3.
Id.
Id. at 2-3.
Id. at 3 Exhibits D-47 through D-58 to Exhibit A to Exhibit 1.
On July 1, 1998, plaintiff met with Luderus regarding the position she should have as the investigation was concluded. Three positions were available, including her former position in the Maintenance Department which remained vacant. All positions were secretarial, with the same pay and benefits as plaintiff had continued to receive prior to and during the investigation. Plaintiff opted to discuss the matter with her attorney, and she subsequently decided to reclaim her position in the Maintenance Department with defendant's approval. Plaintiff received a salary raise in December 1998.
Docket no. 16, Exhibit 3 at 4.
Id. at 4-5.
Docket no. 16, Exhibit 3 at 5.
Id.
Docket no. 16, Exhibit A to Exhibit 1 at 202.
Plaintiff filed a charge of discrimination with the Texas Commission on Human Rights on June 12, 1998, and received her right to sue letter on August 24, 1998. She filed this lawsuit on October 23, 1998.
Docket no. 16, Exhibit D-44 to Exhibit A to Exhibit 1.
Docket no. 1, attachment.
Docket no. 1.
Defendant filed a motion for summary judgment on March 19, 1999, claiming that: (1) plaintiff's claims regarding incidents occurring prior to August 16, 1997 are untimely and the continuing violation theory is not applicable; (2) plaintiff cannot prove her Title VII, § 1981, and equal protection claims because no adverse employment action was taken against her, or, in the alternative, because the defendant has a legitimate, nondiscriminatory reason for its employment action; (3) plaintiff cannot prove her sexual harassment claim because the alleged harassment did not affect a term, condition, or privilege of plaintiffs's employment, or, in the alternative, because the defendant took prompt, remedial action to remedy any alleged sexual harassment; (4) plaintiff cannot prove her Title VII retaliation claim because she did not suffer an adverse employment action that can be causally connected to her protected activity; (5) plaintiff cannot establish her 1983 claim because no custom or policy of defendant deprived her of a federal right; (6) plaintiff cannot establish her due process claim because she did not have a property interest in her employment; (7) plaintiff cannot prove her free speech claim because no adverse employment action was taken against her that is causally connected to her protected speech; (8) plaintiff cannot prevail on her Texas whistleblower claim because it is barred by limitations and because no adverse employment action was taken against her; (9) sovereign immunity bars plaintiff's intentional infliction of emotional distress claim, or, in the alternative, plaintiff cannot prove the elements of such a claim; and (10) if plaintiff prevails on her state constitutional claims, she is not entitled to money damages. On April 9, 1999, plaintiff filed her response to which defendant replied. Defendant has also filed a motion to strike portions of plaintiff's evidence in support of her response to summary judgment. Defendant's motions are the subject of this report and recommendation.
Defendant uses August 14, 1997, as the 300th day, see docket no. 16 at 3; however, the undersigned considers August 16, 1997, as the 300th day.
Docket no. 16.
Docket no. 22.
Docket nos. 25, 27.
Docket no. 26.
III. ISSUES PRESENTED
1. Whether plaintiff's claims regarding incidents occurring prior to August 16, 1997, as well as those of violations of the Texas Whistleblower Act are untimely?
2. Whether plaintiff suffered an adverse employment action in regard to her Title VII, § 1981, and equal protection claims, or, in the alternative whether defendant provided a legitimate, nondiscriminatory reason for its conduct?
3. Whether the alleged sexual harassment affected a term, condition, or privilege of plaintiffs's employment, or in the alternative, whether defendant took prompt, remedial action to remedy any alleged sexual harassment?
4. Whether plaintiff suffered an adverse employment action causally connected to a protected activity in regard to her Title VII retaliation and free speech claims?
5. Whether for the purpose of her due process claim, plaintiff has a property interest in her employment?
6. Whether plaintiff can establish that defendant's custom or policy deprived her of a federal right pursuant to § 1983?
7. Whether sovereign immunity bars plaintiff's intentional infliction of emotional distress claim, or in the alternative, whether plaintiff can establish the elements of this claim?
IV. SUMMARY JUDGMENT
A. StandardThe standard to be applied in deciding a motion for summary judgment is set forth in Federal Rule of Civil Procedure 56, which provides in pertinent part as follows:
The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.
FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986).
Mere allegations of a factual dispute between the parties will not defeat an otherwise proper motion for summary judgment. Rule 56 requires that there be no genuine issue of material fact. A fact is material if it might affect the outcome of the lawsuit under the governing law. 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. Therefore, summary judgment is proper if, under governing laws, there is only one reasonable conclusion as to the verdict; if reasonable finders of fact could resolve a factual issue in favor of either party, summary judgment should not be granted.
Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986).
Anderson, 477 U.S. at 248; Thomas v. LTV Corp., 39 F.3d 611, 616 (5th Cir. 1994).
Anderson, 477 U.S. at 248; Wise v. E.I. DuPont De Nemours Co., 58 F.3d 193, 195 (5th Cir. 1995).
Anderson, 477 U.S. at 249.
The movant on a summary judgment motion bears the initial burden of providing the court with a legal basis for its motion and identifying those portions of the record which it alleges demonstrate the absence of a genuine issue of material fact. The burden then shifts to the party opposing the motion to present affirmative evidence in order to defeat a properly supported motion for summary judgment. All evidence and inferences drawn from that evidence must be viewed in the light favorable to the party resisting the motion for summary judgment. Thus, summary judgment motions permit the Court to resolve lawsuits without the necessity of trials if there is no genuine dispute as to any material facts and the moving party is entitled to judgment as a matter of law. B. Defendant's Motion to Strike Plaintiff's Summary Judgment Evidence
Celotex Corp., 477 U.S. at 323.
Anderson, 477 U.S. at 257.
Hibernia Nat'l Bank v. Carner, 997 F.2d 94, 97 (5th Cir. 1993).
See Fields v. City of South Houston. Tex., 922 F.2d 1183, 1187 (5th Cir. 1991).
Defendant has filed a motion to strike certain evidence offered in support of plaintiff's response to the motion for summary judgment, including portions of plaintiff's affidavit, plaintiff's deposition, and each of plaintiff's answers to defendant's interrogatories.
Docket no. 26 Docket no. 22, Exhibits A, C, G, respectively.
Evidence presented in opposition to a motion for summary judgment, whether by affidavit, deposition, or interrogatory answers, must be admissible under the rules of evidence. Hearsay statements are entitled to no weight in summary judgment proceedings. Conclusory allegations, speculation, and unsubstantiated assertions are not competent summary judgment evidence.
FED. R. CIV. P. 32(a), 33(c), 56(e).
Pan-Islamic Trade Corp. v. Exxon Corp., 632 F.2d 539, 556 (5th Cir. 1980), cert. denied, 454 U.S.927, 102 S.Ct. 427 (1981).
Doe v. Beaumont Indep. Sch. Dist., 173 F.3d 274, 300 (5th Cir. 1999) (en banc); Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1429 (5th Cir. 1996) (en banc).
Defendant has raised the following objections to portions of plaintiff's affidavit, deposition, and all of her interrogatory answers: (1) the testimony consists self-serving conclusions, assumptions, and speculation, without factual support; (2) the testimony is non-responsive and conclusory; (3) the testimony is hearsay; and (4) plaintiff fails to identify the purpose for which the responses are offered, and the responses are immaterial or irrelevant.
Docket no. 22, Exhibit A at 2, ¶ 1; ¶ 2-from what Martin heard to the end (also hearsay, immaterial, irrelevant); at 3, ¶ 1-all except fact that plaintiff's job was posted (also irrelevant).
Docket no. 22, Exhibit C at 83, lines 20-22 after the word "no"; at 93, lines 11-16 (also hearsay).
Id. at 146 lines 14-15; at 160, lines 14-15 (from unidentified source); at 207, all (also irrelevant).
Docket no. 22, Exhibit G (particularly the answer to Interrogatory No. 4).
For the purposes of entering this Report and Recommendation and based on plaintiff's response, the Court overrules defendant's objections to plaintiff's affidavit. The Courtsustains defendant's objections to lines 20 through 22 on page 83 and lines 11 through 16 on page 93 of plaintiff's deposition on the ground this testimony was nonresponsive. The Court sustains defendant's objection to lines 14 through 15 on page 160 of plaintiff s deposition as hearsay from an unidentified source. Defendant's objections to lines 14 through 15 on page 146 and to page 207 of plaintiff's deposition are overruled. Concerning plaintiff's interrogatory answers, the Court overrules defendant's objections.
This recommendation relies on plaintiff's evidence that is based on personal knowledge and that is specifically referenced in support of plaintiff's contentions. Plaintiff's response refers to the affidavit, Exhibit A, only twice as supporting evidence. The first reference is in support of a description of plaintiff's duties and position in departmental politics. Docket no. 22 at 2. This information is not relevant to the allegations at issue in the case. The second reference is in regard to the District's alleged failure to admonish, discipline, or punish Martin, or any other supervisory personnel, for failing to take action to prevent Dailey's harassment. Id. at 7. Plaintiff's affidavit does not support this allegation, see docket no. 22, Exhibit A, nor has plaintiff raised this allegation in her complaint.
The particular sentence the Court strikes is in reference to plaintiff returning to her position in the Maintenance Department, where she states, "I was told that wasn't going to be possible." Docket 22, Exhibit C, at 160 lines 14-15.
Only once does plaintiff's response refer to the interrogatory answers, to support the fact that plaintiff was Dailey's secretary. Docket no. 22 at 3. Plaintiff's position at the time of the alleged discrimination is uncontested.
VI. ARGUMENTS AND CONCLUSIONS OF LAW
Plaintiff's claims regarding incidents occurring prior to August 16, 1997, are untimely.Defendant seeks summary judgment on plaintiff's claim of alleged incidents occurring prior to August 16, 1997, because these incidents did not occur within 300 days preceding her EEOC complaint. In addition, defendant contends the continuing violation theory is not applicable in this case because the alleged discriminatory acts were not frequent and did not have a degree of permanence. Plaintiff did not respond to this ground for summary judgment.
Docket no. 16 at 3-5.
Id.
Docket no. 22.
To maintain a Title VII claim, a plaintiff must file a charge of discrimination with the EEOC and/or the Texas Commission of Human Rights within 300 days of the "alleged unlawful employment practice," Generally, the limitations period begins on the date the discriminatory act occurred, and a plaintiff cannot sustain her claims based on incidents occurring before the 300 day period. Any act occurring outside the applicable filing period "may constitute relevant background evidence in a proceeding in which the Status of a current practice is at issue, but separately considered, it is merely an unfortunate event in history which has no present legal consequences."
See 42 U.S.C. 2000e-5(e); Dupont-Lauren v, Schneider (USA). Inc., 994 F. Supp. 802, 814 (S.D. Tex. 1998) (citing Anson v. University of Tex. Health Science Ctr. at Houston, 962 F.2d 539, 540 (5th Cir. 1992)).
See Waitman v. International Paper Co., 875 F.2d 468, 474 (5th Cir. 1989).
Tolbert v. United States, 916 F.2d 245, 247-48 (5th Cir. 1990) (citations omitted).
Here, it is undisputed that the first EEOC charge of discrimination was filed on June 12, 1998. Thus, any discriminatory action for which plaintiff complains occurring on or after August 16, 1997, is within the 300-day limitations period and will be considered timely. Unless they can be considered continuing violations, the following alleged events occurred prior to August 16 and will not sustain plaintiff's discrimination claims:
Docket no. 16, Exhibit D-44 to Exhibit A to Exhibit 1.
1. the December 1996 "take the day off together" comment;
2. the December 1996 "nigger" epithet;
3. the April 1997 "Mexican" epithet;
4. the May 1997 derogatory description of a school board member; and
5. the two July 1997 pornography incidents.
Defendant asserts that these alleged violations were not continuing and were each sufficient to alert plaintiff to a possible cause of action for race, national origin, or sex discrimination. Defendant further contends the epithets at issue were stray, infrequent and non-recurring. The Court agrees.
Docket no. 16 at 4.
Id. at 5.
In order to support a finding of a continuing violation, a plaintiff must do more than show a series of unrelated and isolated instances of discrimination. An organized scheme leading to and including a present violation must be established. The core of the theory is that
Huckabay v. Moore, 142 F.3d 233, 239 (5th Cir. 1998).
Id.
equitable considerations may very well require that the filing periods not begin to run until facts supportive of a Title VII charge or civil rights action are or should be apparent to a reasonably prudent person similarly situated. The focus is on what event, in fairness and logic, should have alerted the average lay person to act to protect his rights. At the same time the mere perpetuation of the effects of the time-barred discrimination does not constitute a violation of Title VII in the absence of independent actionable conduct occurring within the statutory period.
Id. (quoting Messer v. Meno, 130F.3d 130, 134-35 (5th Cir. 1997), cert. denied, U.S. , 119 S.Ct. 794 (1999)).
A plaintiff can avoid a limitations bar where there is continuing and persisting discriminatory conduct that produces effects that may not manifest as individually discriminatory except with cumulation in time.
Id.
In Berry v. Board of Supervisors, the Fifth Circuit identified three factors that are relevant to determining whether a continuing violation has occurred: (1) do the alleged acts involve the same subject matter, tending to connect them in a continuing violation; (2) is the frequency of the alleged acts such that it is recurring or is it more in the nature of isolated conduct; and (3) do the acts have the degree of permanence which should trigger an employee's awareness and duty to assert her rights, or which should indicate to the employee that the continued existence of the adverse consequences of the acts are to be expected without being dependent on a continuing intent to discriminate? In this case, to establish that a continuing violation occurred, plaintiff must establish that some "independent actionable conduct" occurred during the statutory period, and that she did not know and could not reasonably be expected to have realized that the time-barred events were in themselves actionable until within 300 days of the date she filed her EEOC charge. Plaintiff has not sustained this burden.
715 F.2d 971, 981 (5th Cir. 1983), cert. denied, 479 U.S. 868, 107 S.Ct. 232.
Id.
See Glass v. Petro-Tex Chem. Corp., 757 F.2d 1554 1561 (5th Cir. 1985) ("This inquiry turns on the facts and context of each particular case.").
The time-barred conduct of which plaintiff complains was not persistent and continuing. It was isolated, discrete, and, in plaintiff's view, immediately offensive. Taking plaintiff's view of the events as true, she could reasonably have been expected to recognize that a cause of action existed at the time each of the alleged incidents occurred. Even assuming plaintiff was not immediately on notice of potential discrimination claims after the December 1996 conduct, she should have been aware of a race/national origin claim in March 1997 and a sexual harassment claim in July 1997. Based on these findings, the Court recommends that defendant's motion for summary judgment be granted because no genuine issue of material fact exists with regard to limitations barring plaintiff's reliance on conduct occurring prior to August 16, 1997, to establish her discrimination claims. Thus, the alleged discriminatory conduct remaining in the case is: (1) the October 1997 New Orleans invitation, (2) the March 1998 comment about "Pachuco" shoes, (3) the March 1998 lunch, and (4) plaintiff's temporary reassignment from the Maintenance Department, including the subsequent posting of that position as vacant.
Plaintiff's Texas whistleblower claim is barred by limitations.
Plaintiff has alleged that defendant retaliated by transferring her from the Maintenance Department after complaining about Dailey's conduct Defendant moves for summary judgment on plaintiff's Texas whistleblower claim on the grounds plaintiff did not timely act on this complaint. In particular, defendant asserts plaintiff did not initiate a grievance with the District regarding retaliation or file suit alleging a whistleblower claim within in ninety days alter her transfer. Plaintiff has not responded to this ground for summary judgment.
Docket no. 1.
Docket no. 16 at 27.
Id. at 28.
Docket no. 22.
A Texas public employee claiming retaliation for reporting an illegal act must sue within ninety days after the retaliation occurred or was discovered through reasonable diligence. Before suing, however, the plaintiff must also "initiate action under the grievance or appeal procedures" of the state employer within that same ninety day period. Filing a grievance, with an exception not relevant here, tolls the period for commencing legal action.
TEx. GOV'T CODE ANN. § 554.005 (Vernon 1994).
TEx. GOV'T CODE ANN. § 554.006(a), (b) (Vernon 1994).
Id. at (c). The exception applies only if a grievance has not been acted on within sixty-one days alter initiating the procedure. Id. at (d).
It is undisputed, plaintiff did not initiate a grievance pursuant to District policies within ninety days after her May 15, 1998 reassignment, nor did she file a lawsuit within that time frame. Therefore, the Court recommends defendant's motion for summary judgment be granted on the ground that she did not timely pursue her Texas whistleblower claims.
Docket no. 16, Exhibit A to Exhibit 1 at 186.
Docket no. 1. As stated previously, plaintiff filed suit on October 23, 1998.
Plaintiff did not suffer an adverse employment action.
Defendant has moved for summary judgment on the grounds that plaintiff cannot establish a prima facie case for her Title VII gender discrimination, § 1981, and equal protection claims because she has not suffered an adverse employment action. Assuming plaintiff established a prima facie case, defendant alternatively asserts summary judgment is proper because defendant had a legitimate, nondiscriminatory reason for any employment decisions.
Plaintiff pleaded equal protection violations under the U.S. and Texas constitutions. The analysis is the same under both constitutions. Reid v. Rolling Fork Pub. Util, Dist., 979 F.2d 1084, 1089 (5th Cir. 1992). In moving for summary judgment, defendant has concluded that plaintiff's equal protection claim was brought under the auspices of § 1983. As plaintiff's complaint does not allege facts that would raise a classic equal protection cause of action and her response does not rebut defendant's conclusion, the Court also concludes plaintiff's claim was brought under § 1983.
Docket no. 16 at 7-9.
Id. at 9-11.
Plaintiff appears to agree that she suffered no adverse employment action, arguing instead that she suffered an abusive and hostile work environment because of Dailey's actions. But, plaintiff also responds to defendant's contention of a legitimate, nondiscriminatory motive for any employment action by alleging defendant ignores that she was reassigned because of Dailey's conduct and that such reassignment was an adverse employment action.
Docket no. 22 at 11.
Id. at 12.
Title VII prohibits any employment practice that "discriminates against any individual with respect to his compensation, terms, conditions, or privileges of employment because of such individuals" sex, race, or national origin. Section 1981 prohibits discrimination based on race or national origin, and section 1983 proscribes a person acting under the color of law from violating another's constitutional rights. The inquiry into discrimination for a cause of action brought under Title VII, § 1981, and § 1983 is essentially the same.
192 42 U.S.C. § 1983.
See Wallace v. Texas Tech Univ., 80 F.3d 1042, 1047 (5th Cir. 1996) (citing Briggs v. Anderson, 796 F.2d 1009, 1019-21 (8th Cir. 1986)).
In an employment discrimination case, a plaintiff has the initial burden of proving by a preponderance of the evidence aprima facie case of discrimination. If the plaintiff does so, a rebuttable presumption arises that the employer unlawfully discriminated against plaintiff. The burden then shifts to the defendant to present evidence that the plaintiff was treated in a certain way for a legitimate, nondiscriminatory reason, If this burden is met, the presumption disappears and the plaintiff has the opportunity to prove that the reason articulated by the employer was a mere pretext for discrimination. For purposes of proving pretext, it is not enough to show that the stated reason was false; plaintiff must show that the stated reason was false and that discrimination was the actual reason for the adverse employment action. The plaintiff ultimately retains the burden of persuading the fact-finder of intentional discrimination.
Patterson v. McLean Credit Union, 491 U.S. 164, 186, 109 S.Ct. 2363, 2378 (1989); Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 252-253, 101 S, Ct. 1089, 1093-94 (1981).
Patterson, 491 U.S. at 187; Burdine, 450 U.S. at 254.
Id.
Patterson, 491 U.S. at 187; Burdine, 450 U.S. at 256.
St. Mary's Honor Center v. Hicks, 509 U.S. 502, 516-17, 113 S.Ct. 2742, 2752 (1993).
To establish a prima facie case of discrimination under Title VII, § 1981, and § 1983, a plaintiff must show that (1) she is a member of a protected class; (2) she was qualified for the position she held; (3) she suffered and adverse employment action; and (4) others not in the protected class who are similarly situated were more favorably treated. To establish claims under 1981 and 1983, a plaintiff must also show intentional discrimination. Defendant concedes plaintiff has satisfied her burden for the first two elements.
Urbano v. Continental Airlines. Inc., 138 F.3d 204, 206 (5th Cir.), cert. denied U.S. , 119 S.Ct. 509 (1998).
See Wallace, 80 F.3d 1042, 1047 (citing Larry v. White, 929 F.2d 206, 209 (5th Cir. 1991), cert. denied, 507 U.S. 1051, 113 S.Ct. 1946 (1993)).
Docket no. 16 at 7.
"Title VII was designed to address ultimate employment decisions, not to address every decision made by employers that arguably might have some tangential effect upon those ultimate decisions." Hiring, discharging, granting leave, compensating and promoting are ultimate employment decisions. Adverse [tangible] employment actions constitute a significant change in employment status such as reassignment with significantly different responsibilities. A rude or uncivil supervisor is not an adverse employment action. Employment actions are not adverse when pay, benefits, and level of responsibility remain the same.
See Mattern v. Eastman Kodak Co., 104 F.3d 702, 707 (5th Cir.) (quoting Dollis v. Rubin, 77 F.3d 777, 78 1-82 (5th Cir. 1995)) (addressing adverse employment actions in the context of a retaliation claim), cert. denied, __ U.S.__, 118 S.Ct. 336 (1997).
Id. (citation omitted)
Burlinaton Indus., Inc. v. Ellerth, __ U.S. __ 118 S.Ct. 2257, 2268 (1998).
Webb v. Cardiothoracic Surgery Assoc. of N. Tex., P.A., 139 F.3d 532, 539 (5th Cir. 1998).
Mattern, 104 F.3d at 708-10 see Williams v. Bristol-Myers Squibb Co., 85 F.3d 270, 274 (7th Cir. 1996) ("a purely lateral transfer, that is, a transfer that does not involve a demotion in form or substance, cannot rise to the level of a materially adverse employment action"); see Ledergerber v. Stangler, 122 F.3d 1142, 1144 (8th Cir. 1997) (holding transfers "involving only minor changes in working conditions and no reduction in pay or benefits will not constitute an adverse employment action").
Given the standards described above, plaintiff has failed to allege an adverse employment action by Dailey or by defendant. Dailey's crude behavior is not enough to establish an adverse action and he made no ultimate employment decision that substantially changed plaintiff's responsibilities, pay, or benefits in an adverse manner. Similarly, plaintiff's temporary reassignment to the Human Resources Department was not a substantial change in responsibilities. Her duties were essentially the same, and her pay and benefits were not affected. Plaintiff does attempt to allege the position was less prestigious; however, she was reassigned as a secretary to an assistant superintendent as opposed to a director who might report to an assistant superintendent. Plaintiff does not explain how such a move is less prestigious. Plaintiff complains about her work conditions on reassignment — a small work area in an inconvenient location and scarce materials — but decisions such as these only tangentially effect ultimate employment decisions and cannot be considered adverse employment actions. Moreover, plaintiff did not complain so that the District had an opportunity to remedy the situation.
Docket no. 22 at 13.
Even assuming plaintiff did establish a prima facie case of discrimination, defendant has satisfied its burden to show a legitimate, nondiscriminatory reason for its employment action. Defendant presented summary judgment evidence reflecting that plaintiff was reassigned because those responsible for the decision believed plaintiff would be uncomfortable in the Maintenance Department during the course of the investigation and because they believed the reassignment was in the District's best interest. Evidence reflects that plaintiff applied for numerous other District positions prior to her reassignment and that she became so ill on the last day she worked with Dailey that she had to be hospitalized for a brief time. Other than arguing that Dailey's actions were the precipitating cause of her reassignment, Plaintiff's response does not suggest how defendant's reason for temporarily reassigning her was a pretext for discrimination.
Docket no. 16, Exhibit 2 at 2; Exhibit 3 at 4.
Docket no. 22 at 12-13.
Accordingly, the Court recommends defendant's motion for summary judgment be granted on the ground that plaintiff has failed to establish a prima facie case of discrimination as to her Title VII gender discrimination, § 1981, and § 1983 claims because she cannot prove an adverse employment action. The Court recommends, in the alternative, that summary judgment be granted as to these claims on the ground that defendant has established a legitimate, nondiscriminatory motive for its employment action which plaintiff failed to controvert.
Plaintiff's claim for hostile environment sexual harassment fails.
Plaintiff has alleged that Dailey's sexual harassment was so abusive that her work environment became hostile. Plaintiff's deposition testimony reflects that Dailey invited plaintiff to New Orleans in October 1997 and then began to criticize her when she refused. Plaintiff complained to Martin about Dailey's abusive conduct in November 1997, but nothing changed, and when Dailey learned of her complaint, he threatened to "spank" plaintiff After having lunch together in March 1998, Dailey put his arm around plaintiff and suggested she address him informally when they were alone. Dailey looked at plaintiff in ways that made her uncomfortable and put his hand on her shoulder while she sat at her desk. Plaintiff attempted unsuccessfully to meet with Martin again and eventually took her complaints to Casillas. Plaintiff applied for numerous other secretarial positions outside the Maintenance Department — both before and after the first complaint of harassment. These positions had closing dates of June 20, 1997, August 12, 1997, October 3, 1997, October 17, 1997, November 21, 1997, December 17, 1997, January 22, 1998, April 2, 1998, and April 28, 1998, supporting to some degree her argument that she desired another position with defendant. Plaintiff's last evaluation conference with Dailey lasted for two days, May 11 and 12, 1998, for more than one and one-half hours. When the conference ended on May 12, plaintiff became ill and was taken to a hospital by EMS, supporting her argument that Dailey had upset her.
Docket no 16, Exhibits D-47 through D-56 to Exhibit A to Exhibit 1.
Defendant's summary judgment proof does not controvert the foregoing facts. Instead, defendant argues that summary judgment should be entered — even assuming plaintiff is able to establish the above-summarized facts — based on either of two alternative bases. Defendant first argues that plaintiff has not established a prima facie claim for hostile work environment due to sexual harassment because Dailey's conduct was not so severe or pervasive as to alter the terms, conditions, or privileges of plaintiff's employment. Defendant alternatively moves for summary judgment on plaintiff's hostile environment claim relying on Indest v. Freeman Decorating and arguing that it acted promptly to remedy any alleged harassment. Plaintiff must establish sexual harassment so pervasive or severe as to alter the conditions of her employment. Assuming plaintiff has satisfied the burden of establishing pervasive and severe harassment, she has not adequately rebutted defendant's asserted affirmative defense.
Docket no. 16 at 12.
164 F.3d 258 (5th Cir. 1999).
Docket no. 16 at 16-18.
See Watts v. Kroger Co., 170 F.3d 505, 509 (5th Cir. 1999).
Compare Farpella-Crosby v. Horizon Health Care, 97 F.3d 803, 806 (5th Cir. 1996) (finding that frequent egregious comments about sexual proclivity created hostile environment) and Waltman v. International Paper Co., 875 F.2d 468, 478 (5th Cir. 1989) (concluding hostile environment existed where female employee was sexually groped repeatedly) with Shepard v. Comptroller of Pub. Accounts of State of Tex., 168 F.3d 871, 872-75 (5th Cir. 1999) (intermittent sexual comments, attempts to look down plaintiff's dress, and touching arm did not establish hostile environment), petition for cert. filed, 67 U.S.L.W. 3773 (U.S. June 11, 1999) (No. 98-1989) and Long v. Eastfield College, 88 F.3d 300, 309 (5th Cir. 1996) (finding single joke involving condoms insufficient to create hostile environment).
Plaintiff contends defendant has misinterpreted Indest and that no affirmative defense is available when an adverse employment action has been taken against a claimant. But, because the Court has concluded that plaintiff has not established that an adverse employment action was taken against her, further analysis of defendant's affirmative defense of prompt remedial action is appropriate.
Docket no. 22 at 14. The Fifth Circuit held in Indest: "Where the company, on hearing a plaintiff's complaint about inappropriate sexual behavior, moves promptly to investigate and stop the harassment, it eradicates any semblance of authority the harasser might otherwise have possessed." 164 F.3d at 266; see also Waymire v. Harris County, 86 F.3d 424, 428 (5th Cir. 1996) (prompt remedial action in responding to hostile work environment claim protects employers from liability for sexually harassing conduct).
Docket no. 22 at 14.
It is settled that an employer is vicariously liable for an actionable hostile environment created by a supervisor with immediate, or higher, authority over the complaining employee. If as in this case, no adverse employment action is taken against a claimant, an employer may raise an affirmative defense and show that: (1) the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior; and (2) plaintiff unreasonably failed to take advantage of any preventive or corrective opportunities provided for by the employer. To establish this affirmative defense, the employer must show that remedial steps stopped the harassing behavior.
Faragher v. Boca Raton, __ U.S.__, 118 S.Ct. 2275, 2292-93 (1998); Burlington Ind., Inc. v. Ellerth, __ U.S.__, 118 S.Ct. 2257, 2270 (1998).
Faragher, 118 S.Ct. at 2293; Ellerth, 118 S.Ct. at 2270.
Dornhecker v. Malibu Grand Prix Corp., 828 F.2d 307, 309 (5th Cir. 1987).
The summary judgment record includes a copy of defendant's policy against sexual harassment and the applicable grievance procedures. Plaintiff raised her first grievance under the applicable procedures on April 13, 1998, concerning Dailey's viewing of pornography. Casillas immediately discovered a previous investigation of the matter, learned of its resolution, and determined that no further action appeared warranted at the time. Plaintiff next complained of sexual harassment on May 14, 1998, when she confirmed that Dailey had invited her to New Orleans. On May 22, 1998, plaintiff informed Casillas of a former female Maintenance Department employee who had complained to plaintiff about Dailey's behavior. On June 9, 1998, Casillas was told of Dailey's threat to spank plaintiff and of the lunch incident. After each of these reports, Casillas sought a response from Dailey and corroborating evidence from numerous current and former employees. Casillas completed her investigation and wrote a report dated June 24, 1998, in which she recommended that Dailey's employment be terminated. On June 25, 1998, Dailey was allowed to resign effective June 30, 1998. In little more than two months from plaintiff's first grievance and approximately two weeks from her last complaint of sexual harassment, an extensive investigation was completed and a resolution was reached. Plaintiff has admitted that the remedy stopped the harassment. Therefore, the Court recommends that defendant's motion for summary judgment be granted on the ground that defendant has established the affirmative defense of prompt, remedial action regarding plaintiff's hostile work environment sexual harassment claim.
Docket no. 16, Exhibit D to Exhibit 2.
Docket no. 16, Exhibit A to Exhibit 1 at 108.
Plaintiff cannot establish a prima facie case of retaliation or of a violation of her right to free speech.
Plaintiff's retaliation claim stems from her temporary reassignment from the Maintenance Department to the Human Resources Department. She views defendant's acts as retaliatory because she was temporarily relieved of her duties and responsibilities in the Maintenance Department and her position in that department was posted as vacant. As stated previously, plaintiff did not complain of the reassignment or her working conditions.
Docket no. 1; Docket no. 22 at 15.
Docket no. 22 at 15.
Title VII prohibits employers from retaliating against employees for filing a discrimination charge or otherwise exercising their rights under Title VII. To establish aprima facie case of retaliation under Title VII, plaintiff must show that: (1) she engaged in activity protected by Title VII, (2) her employer took an adverse employment action against her; and (3) a causal connection exists between the protected activity and the adverse employment action. Once the plaintiff establishes a prima facie case of retaliation, the same burden-shifting analysis used in discrimination cases becomes applicable; the burden of production shifts to the defendant to articulate a legitimate, non-retaliatory reason for its employment actions and the plaintiff then has an opportunity to prove defendant's proffered reasons are pretextual. Ultimately, the employee must show that "but for" the protected activity, the adverse employment action would not have occurred,
See Scrivner v. Socorro Indep. Sch. Dist., 169 F.3d 969 (5th Cir. 1999); Burger v. Central Apartment Management Inc., 168 F.3d 875, 878 (5th Cir. 1999); Mattern, 104 F.3d at 705.
See Seaman v. CSPH. Inc., 179 F.3d 297, 301 (5th Cir. 1999); Long, 88 F.3d at 304-05 n. 4.
Seaman 179 F.3d at 301.
Defendant has moved for summary judgment on plaintiff's Title VII retaliation claim arguing that: plaintiff did not suffer an adverse employment action; no causal connection exists between the alleged employment action and her protected activity; and the District had a legitimate, nondiscriminatory reason for its action That plaintiff was engaged in a protected activity is not contested. As discussed above, plaintiff has not rebutted defendant's proffer of a legitimate, nondiscriminatory reason for its employment action. Also, as addressed above, plaintiff's temporary reassignment did not equate to an adverse employment action. Plaintiff was not demoted nor were her pay or benefits adversely affected. At the conclusion of the District's investigation into her complaints, plaintiff by her own choice resumed her duties in the Maintenance Department. Moreover, there is no causal connection between her reassignment and her filing an administrative grievance. Plaintiff first complained of Dailey's conduct on April 13, 1998. She was reassignment over one month later on May 15, 1998, after she collapsed and was transported to a hospital at the end of an evaluation conference with Dailey on May 12, 1998. Dailey was unaware of her grievances until May 13, 1998, when he first met with Casillas regarding the evaluation conference. The District concluded plaintiff would be more comfortable away from Dailey pending the completion of the investigation into her grievances, and plaintiff never indicated otherwise to defendant. Although her Maintenance Department position was posted, plaintiff knew the job would remain open until the investigation was completed.
Docket no. 16 at 18-20.
Id.
Docket no. 16, Exhibit D-63 to Exhibit A to Exhibit 1.
In sum, the Court recommends that defendant's motion for summary judgment be granted as to plaintiff's Title VII retaliation claim because she cannot establish an adverse employment action causally connected to a protected activity and because she did not establish that defendant's legitimate nondiscriminatory motives for its employment action was pretextual.
Plaintiff argues that her first amendment right to expression was violation when defendant reassigned her because she voiced her grievances. A prima facie case of a violation of first amendment freedom of speech requires plaintiff to show that: (1) her speech involved a matter of public concern; (2) her interest in commenting on the matters outweighed the District's interest in promoting efficiency; and (3) her speech motivated the decision to take adverse employment action against her. Because the Texas Constitution provides broader free speech protections, a claim under that constitution will fail if plaintiff cannot establish a violation of the United States Constitution. Defendant contests only the third prong of plaintiff's prima facie case by asserting plaintiff suffered no adverse employment action causally connected to her speech. For reasons set forth above, the Court concludes plaintiff cannot establish an adverse employment action causally connected to her protected actions, and, therefore, the Court recommends defendant's motion for summary judgment be granted as to plaintiff's free speech claims.
Fowler v. Smith, 68 F.3d 124, 126 (5th Cir. 1995).
See Alcorn v. Vaksman, 877 S.W.2d 390, 401-02 (Tex.App. — Houston [1st Dist.] 1994, writ denied).
Docket no. 16 at 24-26. Defendant also contends it had a legitimate, nondiscriminatory motive for any employment action. However, defendant does not cite an authority holding that the burden shifting scheme established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817 (1973) applies to plaintiff's free speech retaliation claim. The Court concludes the proper test for this cause of action was set forth in Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 97 S.Ct. 568 (1977), in which the Court held that after plaintiff establishes a prima facie case, defendant must show that the actions would have been taken regardless of plaintiff's speech. Id. at 283-87; Brady v. Houston Indep. Sch. Dist., 113 F.3d 1419, 1423 (5th Cir. 1997). Because the Court concludes that plaintiff has not satisfied her prima facie case, the Court does not further address defendant's argument.
Plaintiff has no property interest in her employment.
Plaintiff contends she was denied property interests in the form of salary, benefits, and employment opportunities in violation of the due process clause of the United States and Texas Constitutions. Defendant has provided evidence establishing that plaintiff was at all times an at-will employee who's position could be terminated at any time by either party for any reason. Plaintiff responds that at-will employees may have a contract, but provides no evidence supporting such a conclusion.
Docket no. 16, Exhibits A-C to Exhibit 3.
Docket no. 16 at 24.
Plaintiff relies on Fadeyi v. Planned Parenthood Ass'n of Lubbock, 160 F.3d 1048 (5th Cir. 1998), in support of this contention. However, the Court concludes Fadeyi is not controlling because the issue in that case was whether an at-will employee had a contractual relationship with the employer for the purposes of a § 1981 claim id. at 1048, and not whether an at-will employee has a property interest in her employment.
Docket no. 22 at 15-16.
The Fourteenth Amendment's due process clause does not create a property interest in government employment. Property interests stem from independent sources, such as from a contract, state law, or a policy. Therefore, to advance a due process claim, plaintiff must point to some state or local law, contract, or understanding that creates a property interest in her continued employment. Although not bound by federal due process jurisprudence, Texas courts consider federal interpretations of procedural due process to be persuasive authority in applying state due process (due course of law) guarantees.
Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709 (1972); Cabrol v. Town of Youngsville, 106 F.3d 101, 105 (5th Cir. 1997); Blackburn v. City of Marshall, 42 F.3d 925, 936 (5th Cir. 1995).
See Roth, 408 U.S. at 577, 92 S.Ct. at 2709; Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538, 105 S.Ct. 1487, 1491 (1985); Cabrol, 106 F.3d at 105.
Cabrol, 106 F.3d at 105.
See University of Tex. Medical Sch. at Houston v. Than, 901 S.W.2d 926, 929 (Tex. 1995)
Defendant has provided the policies of the District reflecting that, as a classified employee, plaintiff is an at-will employee with no property interest in her employment. In addition, plaintiff has admitted that she is an at-will employee. Plaintiff has not provided evidence of any other source that may vest in her a property interest in her employment. Moreover, plaintiff has offered no evidence of any property loss she suffered as the result defendant's actions. Accordingly, the Court recommends defendant's motion for summary judgment be granted as to plaintiff's due process claim on the ground that plaintiff has no property interest in her employment.
Plaintiff cannot establish that defendant's custom or policies deprived her of a right.
Defendant has moved for summary judgment regarding plaintiff's § 1983 claims arguing that no custom or policy deprived plaintiff of any rights under federal law. In particular, defendant argues that plaintiff has not established that the District's Board of Trustees has officially adopted a policy depriving plaintiff of her rights. Defendant also contends plaintiff's only claims against the district arise out of negligence.
Docket no. 16 at 23.
Id.
Plaintiff's response to defendant's motion for summary judgment on this ground includes a motion for continuance for additional discovery pursuant to FED. R. Civ. P. 56(f). Plaintiff's response was filed on April 9, 1999, but the discovery period did not end until September 7, 1999. Plaintiff has not filed an amended response reflecting any additional discovery that would support her § 1983 claim. The Court recommends the motion for continuance be denied.
Docket no. 22 at 1, 15. 5.
Docket no. 13.
To prevail on a § 1983 claim, plaintiff must establish that a person acting under the color of state law deprived her of a right secured by the Constitution or laws of the United States. Negligence is not a theory for which liability may be imposed under § 1983. Because respondeat superior is not a basis for liability under § 1983, plaintiff must establish that the violation of her rights was caused by official custom or policy of the District. Official policy is either: (1) a "policy statement, ordinance, regulation, or decision that is officially adopted and promulgated by the government's lawmaking officers or by an official to whom the lawmakers have delegated policy-making authority," or (2) "a persistent, widespread practice of officials or employees, which, although not authorized by officially adopted and promulgated policy is so common and well-settled as to constitute a custom that fairly represents policy." In a school district, the final policy-making authority rests with the district's board of trustees. "When an official's discretionary decisions are constrained by policies not of that official's making, those policies, rather than the subordinate's departures from them, are the act of the municipality."
See 42 U.S.C. § 1983; Augustine v. Doe, 740 F.2d 322, 324 (5th Cir. 1984).
Daniels v. Williams, 474 U.S. 327, 328-29, 106 S.Ct. 662, 663 (1986).
See Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 735-36, 109 S.Ct. 2702, 2723 (1989).
Webster v. City of Houston, 735 F.2d 838, 841 (5th Cir. 1984);see Eugene v. Alief Indep. Sch. Dist., 65 F.3d 1299, 1304-05 (5th Cir.), cert. denied sub nom. Conely v. Eugene, 517 U.S. 1191, 116 S.Ct. 1680 (1996).
Jett v. Dallas Indep. Sch. Dist., 7 F.3d 1241, 1245 (5th Cir. 1993).
City of St. Louis v. Praprotnik, 485 U.S. 112, 127, 108 S.Ct. 915, 926 (1988).
Plaintiff has not alleged any particular District policies that deprive her of federally protected rights nor has she alleged Dailey is a member of the board of trustees. Defendant has offered as summary judgment evidence the District's policies which proscribe discrimination based on race, national origin, and sex, including sexual harassment. These policies also prohibit the "use of profanity, obscene, lewd language, racial slurs or gestures of any kind." Plaintiff testified in her deposition that the board of trustees discriminated against her by acting negligently and failing to apply its procedure. Her claim of negligence does not provide a basis for her § 1983 claim. The record reflects that as soon as District officials became aware of Dailey's conduct, an investigation commenced which resulted in his resignation — negating plaintiff's failure to act claim. The Court recommends that defendant's motion for summary judgment regarding plaintiff's § 1983 claims be granted on the ground that plaintiff cannot establish a District custom or policy which deprived plaintiff of any federal rights.
Docket no. 16, Exhibits A-C to Exhibit 3.
Id.
Docket no. 16, Exhibit A to Exhibit 1 at 31, 169.
Plaintiff cannot prevail on her intentional infliction of emotional distress claim.
Defendant has moved for summary judgment arguing that it is immune from plaintiff's tort claims pursuant to the Texas Tort Claims Act and that plaintiff cannot establish the elements to prove intentional infliction of emotional distress. Plaintiff does not respond to defendant's assertion of immunity but does respond that the facts and substance of her claim for intentional infliction of emotional distress are "duplicative of other federal claims in her Original Complaint."
Docket no. 16 at 28-30.
Docket no. 22 at 17.
In Texas, sovereign immunity protects governmental units and their employees from suit unless immunity has been waived. The law is settled in Texas that school districts perform only governmental functions, not proprietary functions. Accordingly, a school district has sovereign immunity from suit in regard to all of its functions, except to the extent immunity has been waived by the Texas Tort Claims Act.
Goston v. Hutchison, 853 S.W.2d 729, 732 (Tex.App. — Houston [1st Dist.] 1993, no writ); Toungate v. Bastrop Indep. Sch. Dist., 842 S.W.2d 823, 828 (Tex. App-Austin 1992, no writ).
See. e.g., Braun v. Trustees of Victoria Indep. Sch. Dist., 114 S.W.2d 947, 949 (Tex.Civ.App.-San Antonio 1938, writ ref d); accord Gravely v. Lewisville Indep. Sch. Dist., 701 S.W.2d 956, 957 (Tex.App.-Fort Worth 1986, writ ref d n.r.e.);McManus v. Anahuac Indep. Sch. Dist., 667 S.W.2d 275, 277 (Tex. App-Houston [1st Dist.] 1984, no writ).
The Texas Tort Claims Act provides generally:
A governmental unit in the state is liable for:
(1) property damage, personal injury, and death proximately caused by the wrongful act or omission or the negligence of an employee acting within his scope of employment if:
(A) the property damage, personal injury, or death arises from the operation or use of a motor-driven vehicle or motor-driven equipment; and
(B) the employee would be personally liable to the claimant according to Texas law; and
(2) personal injury and death so caused by a condition or use of tangible personal or real property if the governmental unit would, were it a private person be liable to the claimant according to Texas law.
TEX. CIV. PRAC. REM. CODE ANN. § 101.021 (Vernon 1997).
The Act further provides that school districts are exempt from liability except in regard to motor vehicles as specified above. As plaintiff's cause of action does not arise out of a motor vehicle accident, the District is immune from her intentional infliction of emotional distress claim.
TEX. CIV. PRAC. REM. CODE ANN. 101.051 (Vernon 1997);see Barry. Bernhard, 562 S.W.2d 844, 849 (Tex. 1978).
Even assuming defendant was not immune from plaintiff's claim, plaintiff would have to prove that: (1) the District acted intentionally or recklessly; (2) the conduct was extreme and outrageous; (3) the District's actions caused plaintiff emotional distress; and (4) her emotional distress was severe. Extreme and outrageous conduct exists "where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." "Mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities" do not rise to intentional infliction of emotional distress. The use of racially derogatory terms is not considered extreme and outrageous. Job reassignments, negative evaluations, criticism, and constant yelling or threats are not so extreme and outrageous as to rise to the level of intentional infliction of emotional distress. Even conduct which may be illegal in an employment context may not be the sort of conduct constituting extreme and outrageous conduct.
See Twyman v. Twyman, 855 S.W.2d 619, 621-22 (Tex. 1993).
Id.
See Wilson v. Monarch Paper Co., 939 F.2d 1138, 1143 (5th Cir. 1991).
See Ugalde v. WA. McKenzie Asphalt Co., 990 F.2d 239, 243 (5th Cir. 1993).
See Johnson v. Merrell Dow Pharmaceuticals. Inc., 965 F.2d 31, 32-34 (5th Cir. 1992); Monarch, 939 F.2d at 1143; Carey v. Aldine Indep. Sch. Dist., 996 F. Supp. 641, 656-57 (S.D. Tex. 1998); Clayton v. Nabisco Brands. Inc., 804 F. Supp. 882, 887-88 (S.D. Tex. 1992).
Ugalde 990 F.2d at 243; Wilson, 939 F.2d at 1143.
The conduct plaintiff complains of does not rise to the level of extreme and outrageous. The racial epithets were sporadic and not directed at plaintiff. The invitation to New Orleans and the subsequent harassing behavior, including the evaluation conferences, while deplorable are not so atrocious as to offend the community. In particular, plaintiff's allegations that Dailey's conduct during the evaluation conferences caused her severe emotional distress are without merit. Plaintiff admitted in her depositions that Dailey was not rude nor did he yell at her during these conferences. Instead, plaintiff felt threatened because she had to justify each of the marks she gave herself on the self-appraisal. Dailey's conduct would not be viewed as going beyond the bounds of decency. Although Dailey's viewing of pornography on his office computer is objectionable, plaintiff was not invited or forced to look at the pictures and plaintiff has not established that the proved conduct is extreme and outrageous.
Additionally, plaintiff cannot establish that her emotional distress was severe. Although she was treated for a panic attack after the second evaluation conference, the effects were not "so severe that no reasonable man could be expected to endure it." Other than talking to a priest about Dailey's conduct, plaintiff did not seek counseling or medical treatment because of the situation. While plaintiff has memories of Dailey's conduct, the situation did not affect her activities or relationships.
Behringer v. Behringer, 884 S.W.2d 839, 844 (Tex.App. — Fort Worth 1994, writ denied).
Docket no. 16, Exhibit A to Exhibit 1 at 194.
Id at 39-42.
Finally, defendant contends there is no evidence that Dailey or the District acted recklessly or intentionally to cause plaintiff severe emotional distress. Intentional conduct requires a showing that the actor desired the consequences of his act. Intent may be inferred from the circumstances of the case and the conduct of the actor, not just from overt expressions of intent by the actor. An actor is reckless when he knows or has reason to know of facts that create a high degree of risk of harm to another, and deliberately proceeds to act in conscious disregard of or indifference to, that risk.
Docket no. 16 at 33.
Behringer, 884 S.W.2d at 842; LaCoure v. LaCoure, 820 S.W.2d 228, 233 (Tex. App-El Paso 1991, writ denied).
Id.
Behringer, 884 S.W.2d at 842; Twyman, 855 S.W.2d at 624.
The record is devoid of evidence that Dailey or the District intended to cause plaintiff severe emotional distress, nor does it show that either of them knew or had reason to know the conduct had a high degree of severely harming plaintiff. Plaintiff's response does not specify what evidence might create a genuine fact issue of intentional or reckless behavior that caused her severe emotional distress. Based on the above analysis, the Court recommends defendant's motion for summary judgment be granted on the ground the District is immune from plaintiff's intentional infliction of emotional distress claim. Alternatively, summary judgment should be granted because plaintiff cannot establish the elements of her cause of action, specifically that defendant's conduct was extreme and outrageous, plaintiff suffered severe emotional distress, and defendant acted intentionally or recklessly to cause plaintiff harm.
Defendant also moved for summary judgment on the ground that if plaintiff did establish her state constitutional claims, she would not be entitled to monetary damages based on those claims. Docket no 16 at 26. Because the Court recommends granting summary judgment for defendant as to all plaintiff's claims, this argument is moot.
VI. RECOMMENDATION
Based on the foregoing, the Court recommends that defendant's motion for summary judgment (docket no. 16) be GRANTED because plaintiff has failed to establish the existence of a genuine issue of material fact under the applicable legal standards. For purposes of this Report, Defendant's Objections to plaintiff's summary judgment evidence and motion to strike (docket no. 26) are GRANTED in part solely with respect to: lines 20 through 22 on page 83 and lines 11 through 16 on page 93 of plaintiff's deposition on the grounds the testimony was nonresponsive and lines 14 through 15 on page 160 of the same document because the testimony is hearsay from an unidentified source. Defendant's other objections to plaintiff's affidavit and deposition are OVERRULED. The Court further recommends that plaintiff's motion for continuance be DENIED.VII. INSTRUCTIONS FOR SERVICE AND NOTICE OF RIGHT TO OBJECT/APPEAL
The United States District Clerk shall serve a copy of this Report and Recommendation on each and every party either (1) by certified mail, return receipt requested, or (2) by facsimile if authorization to do so is on file with the Clerk. According to 28 U.S.C. § 636(b)(1) and FED. R. Civ. P. 72(b), any party who desires to object to this report must serve and file written objections to the Report and Recommendation within 10 days after being served with a copy unless this time period is modified by the District Court. A party filing objections must specifically identify those findings, conclusions or recommendations to which objections are being made and the basis for such objections; the district court need not consider frivolous, conclusive or general objections. Such party shall file the objections with the Clerk of the Court, and serve the objections on all other parties and the Magistrate Judge. A party's failure to file written objections to the proposed findings, conclusions and recommendations contained in this report shall bar the party from a de novo determination by the District Court. Additionally, any failure to file w In addition the Fifth Circuit has held that prompt remedial action in responding to a hostile work environment claim protects employers from liability for the sexually harassing conduct. Written objections to the proposed findings, conclusions and recommendations contained in this Report and Recommendation within 10 days after being served with a copy shall bar the aggrieved party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the District Court.
See Thomas v. Arn, 474 U.S. 140, 150, 106 S.Ct. 466, 472 (1985).
Douglass, 79 F.3d at 1428.