Opinion
ACTION NO. 4:01-CV-1009-Y
March 12, 2003
ORDER PARTIALLY GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Pending before the Court is Defendant's Motion for Summary Judgment, which was filed in this cause on August 16, 2002. Plaintiff filed a response in opposition to the motion on September 13, and Defendant filed a reply to the response on September 30. After careful consideration of the foregoing documents, the evidence highlighted therein, and the applicable law, the Court concludes that the motion should be partially granted.
Plaintiff contends that Defendant discriminated against him in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. Plaintiff, an Asian-American originally from Laos, is currently employed as a police officer for Defendant. Plaintiff contends that Defendant discriminated against him on the basis of his race when it denied his application to attend field training officer ("FTO") school. Plaintiff also contends that Defendant denied him a transfer to the gang unit in retaliation for his filing of a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC"). Defendant seeks a summary judgment.
I. Summary-Judgment Standard
Summary judgment is appropriate when the record establishes "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). To determine whether there are any genuine issues of material fact, the Court must first consult the applicable substantive law to ascertain what factual issues are material. Lavespere v. Niagara Mach. Tool Works, 910 F.2d 167, 178 (5th Cir. 1990), cert. denied, 510 U.S. 859 (1993). Next, the Court must review the evidence on those issues, viewing the facts and inferences therefrom in the light most favorable to the nonmovant. Id.; Newell v. Oxford Management Inc., 912 F.2d 793, 795 (5th Cir. 1990); Medlin v. Palmer, 874 F.2d 1085, 1089 (5th Cir. 1989).
In making its determination on the motion, the Court must look at the full record including the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits. FED. R. CIV. P. 56(c); see Williams v. Adams, 836 F.2d 958, 961 (5th Cir. 1988). Rule 56, however, "does not impose on the district court a duty to sift through the record in search of evidence to support a party's [motion for or] opposition to summary judgment." Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915-16 n. 7 (5th Cir.), cert. denied, 506 U.S. 825 (1992). Instead, parties should "identify specific evidence in the record, and . . . articulate the `precise manner' in which that evidence support[s] their claim." Forsyth v. Barr, 19 F.3d 1527, 1536 (5th Cir. 1994). Still, the Court's function is not to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
The party moving for summary judgment has the initial burden of demonstrating that there is no genuine issue as to any material fact and that he is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317 (1986). When the moving party has carried its summary-judgment burden, the nonmovant must go beyond the pleadings and by its own affidavits or by the depositions, answers to interrogatories, or admissions on file set forth specific facts showing that there is a genuine issue for trial. FED. R. CIV. P. 56(e).
II. Analysis
A. Field Training Officer School
Defendant's motion contends that Plaintiff has failed to demonstrate a prima-facie case of discrimination. To establish a prima-facie case, a Title VII plaintiff may prove his claim either through direct evidence, statistical proof, or the burden-shifting test announced in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). Urbano v. Continental Airlines, Inc., 138 F.3d 204 (5th Cir.), cert. denied, 525 U.S. 1000 (1998). Citing the burden-shifting test of McDonnell Douglas, Defendant contends that Plaintiff cannot prove, prima facie, that it engaged in racial discrimination in denying his application for FTO school. Plaintiff counters, however, that he has proved his prima-facie case by presenting direct evidence of discrimination.
The evidence demonstrates that deputy police chief Larry Boyd made the final decision to deny Plaintiff's application for FTO school. Boyd initially made that decision after meeting with certain lieutenants, including Charles Cassity, who was Plaintiff's lieutenant. At the meeting, Cassity indicated that although Plaintiff's immediate supervisor, sergeant Rick Wade, had recommended Plaintiff for the FTO school, Cassity could not support that recommendation. Cassity told Boyd that both he and Wade believed Plaintiff had a problem with report writing that prevented him from being a good candidate for FTO school. Boyd testified that he believes good report writing is essential for FTOs and that he would not knowingly recommend anyone for FTO school who had deficiencies in that area. As a result, relying on Cassity's negative comments about Plaintiff's report-writing ability, Boyd concluded that Plaintiff's application for the FTO school should be denied.
The police department's written description of the FTO's responsibilities includes the ability to document a recruit's performance. See Def.'s App. at 130, 133.
Thereafter, Boyd encouraged Cassity to meet with Plaintiff to explain why his application had been denied. During that meeting, Cassity told Plaintiff that he "did not believe that [Plaintiff] could train white officers who were born in this country because of [Plaintiff's] background." (Pl.'s App. at 3.). Plaintiff contends that statement constitutes direct evidence of racial discrimination, thus establishing his prima-facie case.
Direct evidence of discrimination has been defined as "evidence which, if believed, proves the fact [of discriminatory animus] without inference or presumption. " Brown v. E. Miss. Elec. Power Ass'n, 989 F.2d 858, 861 (5th Cir. 1993). Direct evidence of discrimination includes comments that "directly suggest the existence of bias." Davis v. Chevron U.S.A., Inc., 14 F.3d 1082, 1085 (5th Cir. 1994) (per curiam). Direct evidence does not include, however, "stray remarks in the workplace," "statements by nondecisionmakers," or "statements by decisionmakers unrelated to the decisional process itself." Price Waterhouse v. Hopkins, 490 U.S. 228, 277 (1989) (O'Connor, J., concurring).
The Court concludes that an inferential step is required for Cassity's remark to constitute evidence of racial discrimination. Cassity did not say that Plaintiff's race played a role in his assessment; rather, he mentioned Plaintiff's "background. " That could conceivably be a reference to any number of things from Plaintiff's past. Thus, for the comment to be discriminatory, one must infer that Cassity's comment about Plaintiff's background referred to his race. Although Cassity's reference to "white officers" is troubling, the Court is not convinced that his statement constitutes direct evidence of racial discrimination.
Because Plaintiff has failed to present direct evidence of discrimination, the Court must determine whether he has presented a prima-facie case of discrimination under the burden-shifting test of McDonnell Douglas. See Kneibert v. Thomson Newspapers, Mich., Inc., 129 F.3d 444, 453 (8th Cir. 1997) (applying McDonnell Douglas test after rejecting Plaintiff's contention that certain evidence constituted direct evidence of discrimination). That test requires Plaintiff to show that: (1) he was a member of a protected class, (2) he was qualified for the position he sought, (3) he was not selected for the position, and (4) others similarly situated were more favorably treated. See Urbano, 138 F.3d at 206.
Defendant questions whether being denied training is the kind of adverse employment action cognizable under Title VII, citing Wakefield v. State Farm Ins. Co., 75 F. Supp.2d 545 (N.D. Tex. 1999), aff'd, 229 F.3d 1148 (5th Cir. 2000). (Def.'s Br. in Supp. of Mot. For Summ. J. at 6, n. 4.) In Wakefield, the court noted that Title VII's anti-discrimination provisions were designed to address only ultimate employment decisions, such as "hiring, granting leave, discharging, promoting, and compensating." Wakefield, 75 F. Supp.2d at 549. In support of that proposition, the court cited the Fifth Circuit's decisions in Dollis v. Rubin, 77 F.3d 777, 781-82 (5th Cir. 1995), and Mattern v. Eastman Kodak Co., 104 F.3d 702, 707 (5th Cir.), cert. denied, 522 U.S. 932 (1997). Subsequent Fifth Circuit cases have questioned whether the ultimate-employment-decision doctrine employed in Dollis and Mattern applies to Title VII's anti-discrimination provision, as opposed to its anti-retaliation provision, and whether the doctrine remains viable in light of the Supreme Court's decisions in Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998), and Faragher v. City of Boca Raton, 524 U.S. 775 (1998). See Felton v. Polles, 315 F.3d 470, 486-87 (5th Cir. 2002) (discussing cases); see also 42 U.S.C.A. § 2000e-2(a)(2) (West 1994) (making it unlawful for an employer "to limit . . . his employees . . . in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race."). As a result, the Court will assume, as have the parties, that the denial of Plaintiff's application to FTO school constitutes the type of change in the terms and conditions of Plaintiff's employment that is actionable under Title VII.
Defendant's motion contends that Plaintiff's prima-facie case fails under the McDonnell Douglas test because Plaintiff cannot present any evidence that non-Asian employees with a record of writing deficiencies similar to Plaintiff's were approved for FTO school. Fifth Circuit law is in conflict, however, regarding whether a Title VII plaintiff must prove, as part of his prima-facie case, that persons outside his protected class received more favorable treatment:
The Supreme Court "has not directly addressed the question whether the personal characteristics of someone chosen to replace a Title VII plaintiff are material. . . ." St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 527 n. 1, 113 So. Ct. 2742, 2758 n. 1, 125 L.Ed.2d 407 (1993) (Souter, J., dissenting). Cf. O'Connor v. Consolidated Coin Caterers Corp., ___ U.S. ___, ___, 116 S.Ct. 1307, 1310, 134 L, Ed.2d 433 (1996) ("The fact that one person in the protected class has lost out to another person in the protected class is . . . irrelevant, so long as he has lost out because of his age."). Recent cases in our circuit support the . . . view that a plaintiff's replacement by a member of the same protected class precludes the establishment of a prima facie case. See Singh v. Shoney's Inc., 64 F.3d 217, 219 (5th Cir. 1995); Allison v. Gulf Employees Credit Union, 836 F. Supp. 395, 397 (E.D. Tex. 1993), aff'd mem., 32 F.3d 565 (5th Cir. 1994). These recent cases ignore earlier precedent in this circuit, however, which explicitly recognized "that the single fact that a plaintiff is replaced by someone within the protected class does not negate the possibility that the discharge was motivated [by] discriminatory reasons." Hornsby v. Conoco, Inc., 777 F.2d 243, 246-47 (5th Cir. 1985) (citing Byrd v. Roadway Express, Inc., 687 F.2d 85, 86 (5th Cir. 1982). It bears noting that our earlier precedent on this point continues to be controlling law in this circuit. United States v. Gray, 751 F.2d 733, 735 (5th Cir. 1985). While the fact that one's replacement is of another national origin "may help to raise an inference of discrimination, it is neither a sufficient nor a necessary condition." Carson v. Bethlehem Steel Corp., 82 F.3d 157, 159 (7th Cir. 1996).Nieto v. LH Packing Co., 108 F.3d 621, 624 n. 7 (5th Cir. 1997) (concluding that district court erred in holding that the plaintiff had failed to prove a prima-facie case of discrimination solely because his position was immediately filled by a member of the same national origin); see also Williams v. Trader Pub. Co., 218 F.3d 481, 485 (5th Cir. 2000) (concluding that a gender-discrimination plaintiff did not have to prove she was replaced by a male as part of her prima-facie case).
Plaintiff has demonstrated that other officers were more favorably treated. Specifically, Sergeant Martin, the head of the FTO school, testified that other officers with report-writing abilities similar to Plaintiff's had been admitted to and successfully completed the FTO school. Plaintiff has not demonstrated, however, that those other officers were not Asian. Certainly, proof that they were Asian would be a significant blow to Plaintiff's case. See Nieto, 108 F.3d at 624 (noting that replacement by someone in the plaintiff's protected class "is certainly material to the question of discriminatory intent."). Nevertheless, in light of the conflicting Fifth Circuit case law, and because Plaintiff has presented other circumstantial evidence of discriminatory intent (i.e. Cassity's remark), this Court will not grant a summary judgment in Defendant's favor simply because Plaintiff failed to demonstrate, prima facie, that the officers who were admitted to the FTO school with report-writing abilities similar to Plaintiff's were not Asian.
Defendant counters that even assuming Plaintiff has demonstrated a prima-facie case of discrimination, it has articulated a nondiscriminatory reason for denying him admission to the FTO school, and Plaintiff cannot prove that this reason was a pretext for unlawful discrimination. Plaintiff has presented evidence demonstrating, however, that from the time he left field training until the time he applied for FTO school in May 1999 he did not receive any complaints about his communication and report-writing abilities. After he left field training, his performance appraisals rated his communication skills "effective." Indeed, his report-writing abilities were even praised by one of the detectives. Consequently, the Court concludes that Plaintiff has presented sufficient evidence to create a factual issue regarding pretext. And, when coupled with the allegedly discriminatory remark made by Cassity in explaining the reason for the denial of Plaintiff's application, the Court concludes that Plaintiff has raised a factual issue as to whether Defendant's decision was a pretext for racial discrimination.
In a memo dated May 20, 1999, detective J.N. Lasater commended Plaintiff for his report-writing abilities and indicated that Plaintiff "articulates very well," that Lasater is "never confused when [he] reads one of [Plaintiff's] reports," and that Plaintiff "is an attribute to The Arlington Police Department in his exceptional field investigation and report writing abilities." (Pl.'s App. at 5.)
In order to prove intentional discrimination under Title VII, "a plaintiff must establish (1) the employer's discriminatory animus towards the employee based on the employee's protected characteristic; (2) a discharge or other significant change in the terms or conditions of employment; and (3) a causal link between the two." Stimpson v. City of Tuscaloosa, 186 F.3d 1328 (11th Cir. 1999). When a supervisory employee who possesses discriminatory animus is not the final decisionmaker, a plaintiff can demonstrate that the supervisor's discriminatory animus nevertheless caused the adverse employment action if he can show that the final decisionmaker merely acted as a rubber-stamp of the supervisor:
[W]hen the person conducting the final review serves as the "cat's paw" of those who were acting from retaliatory motives, the causal link between the protected activity and the adverse employment action remains intact. See Long [v. Eastfield College], 88 F.3d [300,] 307 [5th Cir. 1996] (quoting Shager v. Upjohn Co., 913 F.2d 398, 405 (7th Cir. 1990)). The ultimate question, therefore, is whether "`the employee can demonstrate that others had influence or leverage over the official decisionmaker.'" Rios v. Rissotti, 252 F.3d 375, 382 (5th Cir. 2001) (quoting Russell v. McKinney Hosp. Venture, 235 F.3d 219, 226 (5th Cir. 2001)). As Long instructs, "[t]he degree to which [the final decisionmaker's] decisions were based on his own independent investigation is a question of fact. . . ." 88 F.3d at 307.Gee v. Principi, 289 F.3d 342, 346 (5th Cir. 2002); Stimpson, 186 F.3d at 1332.
Boyd admits that in making his initial determination to deny Plaintiff's application to attend FTO school, he relied on Cassity's negative recommendation regarding Plaintiff's report-writing abilities. Thus, Cassity unquestionably influenced Boyd's initial decision. Nevertheless, Defendant contends that after Boyd learned of Cassity's remark to Plaintiff, he conducted an independent investigation into Plaintiff's report-writing skills. Specifically, he asked Debbie Wentworth, supervisor of the police department's records division, to pull a sampling of Plaintiff's reports and give him her opinion about their quality. Wentworth concluded that Plaintiff's report-writing abilities were deficient. Boyd also requested that sergeant Terry Martin, who was in charge of FTO school, examine Plaintiff's reports. Martin agreed that the reports were below average. As a result, Boyd declined to reverse his decision denying Plaintiff's application to FTO school.
The Court concludes, however, that Plaintiff has created a question of fact regarding whether Boyd's subsequent investigation was sufficient to alleviate Cassity's influence. When asking Wentworth to review Plaintiff's reports and provide her assessment of their quality, Boyd told her that his request resulted from Plaintiff's complaint about having been denied permission to attend FTO school. Given information that arguably conditioned her review and assessment, it is not surprising that Wentworth found problems with Plaintiff's reports. Furthermore, Wentworth examined Plaintiff's reports in a vacuum. She did not compare them with the reports of other officers, and there is no evidence demonstrating that she was knowledgeable regarding the composition of a "good" report; she had no training in report writing and received no guidelines or standards to use in evaluating Plaintiff's reports.
The Court supposes that Wentworth's supervisory experience in the records department taught her to distinguish between well and poorly written reports. Defendant has not highlighted any specific evidence demonstrating that fact, however, and, because this is a summary-judgment proceeding, where all inferences are to be drawn in Plaintiff's favor, the Court is not inclined to turn supposition into presumption.
Martin also had heard that Plaintiff's application to FTO school was denied for deficiencies in his report-writing abilities before Boyd asked him to review Plaintiff's reports. He was not asked to, and apparently did not, compare Plaintiff's reports to those generated by other FTO-school applicants. In fact, rather than pulling clean samples of Plaintiff's reports and reviewing them objectively, he was provided with the same reports that were examined by Wentworth, with her comments "written all over them."' (Pl.'s App. at 81.) And, although Martin agreed that Plaintiff's reports were deficient, he also testified that others with similar abilities had been admitted to and successfully completed FTO school. He further indicated that he did not believe such problems were a sufficient basis upon which to deny Plaintiff's application. Consequently, the Court concludes that Plaintiff has demonstrated a factual issue as to whether Boyd's allegedly independent investigation was sufficient to dispel Cassity's influence.
Finally, Defendant contends that Plaintiff's claim regarding FTO school fails because, assuming Plaintiff has proven that Defendant engaged in racial discrimination in denying his application for the school, Defendant would have made the same decision even if it had not given consideration to Plaintiff's race. In support of this position, Defendant relies upon Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). In that case, the Supreme Court held that when a plaintiff presents direct evidence of discrimination, the burden of persuasion shifts to the defendant to demonstrate that the same adverse employment decision would have been made regardless of discriminatory animus; if the same decision would have been made, the defendant prevails. Id. The holding in Price Waterhouse, however, was subsequently amended:
In 1991, Congress amended the holding in Price Waterhouse through passage of the Civil Rights Act of 1991. Currently, under Title VII an unlawful employment practice is established when the complaining party establishes that race, color, national original, or sex was a motivating factor for any employment practice, even though other factors also motivated the practice. See 42 U.S.C. § 2000e-2(m); Buchanan v. City of San Antonio, 85 F.3d 196, 200 (5th Cir. 1990). If an employer can establish that it would have taken the same action in the absence of the impermissible motivating factor, the plaintiff's relief is limited to injunctive and declaratory relief, costs, and attorneys' fees. See Buchanan, 85 F.3d at 200 (citing 42 U.S.C. § 2000e-5 (g)(2)(B)(I)).Garcia v. City of Houston, 201 F.3d 672, 676 (5th Cir. 2000).Consequently, Defendant is not entitled to a summary judgment on this ground.
B. Transfer to the Gang Unit
Defendant also seeks summary judgment to the extent Plaintiff complains about its failure to grant his request for a transfer to the gang unit, contending that the denial of the transfer was not an adverse employment action. Plaintiff claims that he was denied the transfer in retaliation for his filing of an EEOC charge regarding the denial of his application to attend FTO school. In order to prove his retaliation claim, Plaintiff must show: "(1) that he engaged in activity protected by Title VII; (2) that he suffered an adverse employment action; and (3) that a causal connection exists between the protected activity and the adverse employment action." Byers v. Dallas Morning News, 209 F.3d 419, 427 (5th Cir. 2000). Defendant has demonstrated that the gang-unit transfer was a lateral assignment that would have resulted in Plaintiff's suffering a five-percent loss in pay. Plaintiff's response wholly fails to address Defendant's contention. Consequently, because Plaintiff has failed to present any evidence tending to show that denial of the gang-unit transfer constituted an adverse employment action under Title VII, the Court concludes that Defendant is entitled to summary judgment on this claim. C. Discriminatory Treatment Prior to May 1, 1999:
In the Supreme Court's decisions in Burlington Industries and Faragher, the Court "sets out a relatively broad definition of `tangible employment action': `a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.'" Fierros v. Tex. Dep't of Health, 274 F.3d 187, 192 n. 2 (5th Cir. 2001). The Fifth Circuit has recognized, but has not decided, "that the definition of `tangible employment action' developed in the sexual harassment context in Burlington Industries may be the proper "`adverse employment action" standard for Title VII retaliation claims." Id. (citing Watts v. Kroger Co., 170 F.3d 505, 510 n. 4, 511 n. 5 (5th Cir. 1999). In any event, Plaintiff has failed to demonstrate that denial of the gang-unit transfer satisfied either the Burlington Industries standard or the Fifth Circuit's prior "ultimate employment action" standard. See supra note 2,
Plaintiff's complaint also alleges various other acts of alleged discriminatory treatment: (1) that there was a delay in his language-pay certification; (2) that he was denied admission to Tactical Officers training; and (3) that he was not recognized and commended for his good work. Defendant seeks summary judgment to the extent Plaintiff attempts to assert these matters as additional claims for relief in this action because Plaintiff failed to raise them in his charge of discrimination filed with the EEOC. Plaintiff filed his EEOC charge on August 27, 1999, alleging only that he was discriminated against on account of his race when he was denied the opportunity to attend FTO school. A Title VII plaintiff is not permitted to assert claims in litigation that are not based upon or arise out of facts alleged in the EEOC charge. See Matthews v. A-l, Inc., 748 F.2d 975, 976-77 (5th Cir. 1984); see also Young v. City of Houston, 906 F.2d 177, 179 (5th Cir. 1990) ("The scope of inquiry of a court hearing a Title VII action `is limited to the `scope' of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination.'") (quoting Sanchez v. Standard Brands, Inc., 431 F.2d 455, 466 (5th Cir. 1970)). As a result, the Court concludes that Defendant's motion should be granted to the extent Plaintiff attempts to assert these matters as independent bases for recovery in this action. D. Back Pay
Plaintiff's response to Defendant's motion indicates that Plaintiff does not intend to pursue these matters as separate claims of discrimination for which he may recover. Rather, Plaintiff contends that they are relevant to the discrimination alleged in the EEOC charge. Although the Court questions the relevancy of these seemingly discrete claims of disparate treatment, the Court is not inclined to determine this evidentiary issue at the summary-judgment stage.
Defendant's motion seeks a summary judgment that Plaintiff's request for back pay is limited to $2,561.30. Defendant contends, and has presented evidence demonstrating, that an assignment as an FTO would have resulted in a five-percent increase in pay, thus increasing Plaintiff's pay by $182.95 per month. Defendant has also presented evidence that on August 23, 2000, Plaintiff stated he was "no longer interest [ed] in [a] Field Training Officer (FTO) position at this moment." (Def.'s App. at 48). Thus, Defendant urges that any award of back pay be limited to June 1999 through August 2000.
Plaintiff's brief response to Defendant's contention on this issue fails to create a genuine issue of fact for trial. Plaintiff's response contends only that Defendant offered him the opportunity to attend FTO school again, but that "the offer was dated March 8, 2002 (App. 4), and it was not unconditional. It was conditioned on resolving th[is] case." (PL's Am. Br. in Supp. of Pl.'s Resp. to Def.'s Mot. for Summ. J. at 7.) Page four of Plaintiff's appendix, however, does not mention any March 8, 2002, offer, nor does it indicate that this, or any other, offer was conditioned upon resolving this case. Further, Plaintiff wholly fails to address his August 23, 2000, statement that he was no longer interested in the FTO position. Consequently, the Court concludes that Defendant is entitled to summary judgment on this issue.
III. Conclusion
For the foregoing reasons, the Court concludes that Defendant's Motion for Summary Judgment [document number 23] is hereby PARTIALLY GRANTED. Defendant's motion is granted regarding all of Plaintiff's claims of discrimination except Plaintiff's claim that his application to attend FTO school was denied as a result of race discrimination. As to that claim, Defendant's motion is granted to the extent it seeks to limit any back-pay award to $2,561.30.