Opinion
CIVIL ACTION NO. 3:01-cv-0771-AH.
December 17, 2001.
MEMORANDUM OPINION AND ORDER
On this date came on to be considered Defendant's Motion for Summary Judgment filed on September 19, 2001, Plaintiff's response, filed October 19, 2001, and Defendant's reply thereto filed November 5, 2001. Having carefully considered the relevant pleadings, including the parties' summary judgment briefs and appendices, as well as applicable authorities, the court, for the reasons stated herein, GRANTS Defendant's Motion for summary judgment.
I. Factual Background
In this action against her former employer, Defendant Lancaster Independent School District ("The District"), Plaintiff Rosetta Jefferson ("Jefferson") alleges that her employment contract was not renewed and that she was subjected to a hostile work environment on the basis of race discrimination in violation of Title VII of the Civil Rights Acts of 1964, as amended, 42 U.S.C. § 2000e et. seq. The record reflects that Jefferson has satisfied all administrative prerequisites to filing a claim under Title VII, including filing a charge with the Equal Employment Opportunity Commission ("EEOC"), receiving a right-to-sue letter from the EEOC, and filing suit within ninety days thereafter. Pl.'s First Am. Compl. ¶ 4.
In her prior response filed on June 27, 2001, to Defendant's motion for partial dismissal, Plaintiff advised that she was withdrawing her claims for intentional infliction of emotional distress, claims arising under 42 U.S.C. § 1981, and claims for punitive damages. However, in her subsequently filed First Amended Complaint she alleges a § 1981 claim and a supplemental state law claim for the intentional infliction of emotional distress.
Jefferson was employed by Curt Risner the principal at Lancaster Junior High School, as the school's receptionist beginning on the first day of school in August of 1999 (Pl.'s Dep. at 7-8, 11). Jefferson's duties as receptionist included answering the telephone in a courteous and professional manner, greeting visitors to the school, scheduling before and after school conferences, assisting the nurse and registrar, maintaining the reception area, as well as various other duties assigned by the principal's secretary or principal (Pl.'s Dep. at 11; see also Def.'s App. Ex. 3C). During her term of employment, Ms. Jefferson's immediate supervisor was Ms. Debi Miller ("Miller"), who in turn reported to Mr. Curt Risner, the principal (Def.'s App. Ex. 3 at ¶¶ 2-3) (Affidavit of Miller).
In November of 1999, three months after Jefferson began her employment, Risner along with Ms. Miller conducted a conference with Jefferson, regarding perceived deficiencies in her job performance (Def.'s App. Ex. 2 at ¶ 8, 10-11) (Affidavit of Risner).
According to Mr. Risner and Ms. Miller, throughout her employment at the junior high school, Jefferson was observed either by Risner, or Miller, or both, and based on complaints from other employees, to leave her desk unattended without securing a backup to answer the telephone; to use the school's computer for personal use; to have difficulty transferring calls-either forwarding them improperly or disconnecting them altogether; to fail to record and deliver messages properly-often without the callers name, phone number, etc.; to fail to courteously greet visitors to the school; to fail to set-up parent-teacher conferences as requested; to allow students to use school phones; to fail to gather homework for absent students; and to omit signing for UPS deliveries (Def's App. Ex. 2 at ¶¶ 6-7 and Ex. 3 at ¶¶ 9-10). Each states that Jefferson was apprised of these deficiencies, but that she often took a defensive posture toward any critiques and failed to take any remedial measures to address the problems (Def.'s App. Ex. 2 at ¶ 8 and Ex. 3 at ¶ 11). These alleged deficiencies culminated in an unfavorable evaluation of Jefferson's performance by Risner on May 22, 2000, wherein he scored Jefferson low on "[c]ooperation" and "[a]daptibility," as well as "[s]kills [r]equired [f]or [a]ssignment" and "[f]riendliness and [w]armth" (Def.'s App. Ex. 2 at ¶ 12; Def.'s App. Ex. 2A). Subsequently, Risner informed Jefferson that her employment contract would not be renewed for the 2000-2001 school year, based on her poor performance (Def's App. Ex. 2 at ¶ 14).
II. Legal Analysis
A. Summary Judgment — Standard of Review
To prevail on a motion for summary judgment, the moving party has the initial burden of showing that there is no genuine issue of any material fact and that judgment should be entered 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 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2509-10 (1986). The materiality of facts is determined by substantive law. Anderson, 477 U.S. at 248, 106 S.Ct. at 2510. An issue is "material" if it involves a fact that might affect the outcome of the suit under governing law. See Burgos v. Southwestern Bell Telephone Co., 20 F.3d 633, 635 (5th Cir. 1994). Once the moving party has made an initial showing, the party opposing the motion for summary judgment may not merely rely on his pleadings, but must come forward with competent evidentiary materials that establish a genuine fact issue. Anderson v. Liberty Lobby, Inc., 477 US at 256-257, 106 S.Ct. at 2514; see also Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585-87, 106 S.Ct. 1348, 1355-56 (1986). Neither conclusory allegations nor hearsay statements are competent summary judgment evidence, and thus are insufficient to defeat a motion for summary judgment. Eason v. Thaler, 73 F.3d 1322, 1325 (5th Cir. 1996). The party opposing summary judgment is required to identify specific evidence in the record and to articulate the precise manner in which that evidence supports the opponent's claim. Ragas v. Tennessee Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998). The court must resolve any factual controversies in favor of the non-moving party. Richter v. Merchants Fast Motor Lines, Inc., 83 F.3d 96, 98 (5th Cir. 1996). Thus, in reviewing all of the evidence, the court must consider it in a light most favorable to Ms. Jefferson's claims, drawing all factual inferences therefrom and making all credibility determinations related therefrom in her favor. However, summary judgment will be granted "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322.The District contends that it is entitled to summary judgment, because Jefferson cannot establish a prima facie case of racial discrimination. As summary judgment evidence, Defendant proffers the following: excerpts from Jefferson's deposition, Risner's affidavit, Jefferson's May 22, 2001 evaluation, Miller's evaluation, and a description of Jefferson's receptionist duties.
B. Title VII — Applicable Law
1. Plaintiff's Termination claim
Title VII of the Civil Rights Act of 1964 makes it unlawful for an employer to "discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment." 42 U.S.C. § 2000e-2(a)(1). In the absence of overt discriminatory acts or conduct which concededly are not present in this case-in order to overcome a motion for summary judgment on a Title VII discrimination claim, the plaintiff must first establish, by a preponderance of the evidence, a prima facie case of discrimination. Randell v. Peterleos de Venezuella SA, 266 F.3d 343, 354 (5th Cir. 2001) citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 1824-26, 36 L.Ed.2d 668 (1973); Haynes v. Pennzoil Co., 207 F.3d 296, 300 (5th Cir. 2000). In order to establish a prima facie case of discrimination based on race or national origin, a plaintiff must show that (1) she suffered an adverse employment action; (2) she was qualified for the position; (3) she was within a protected class at the time of the decision; and possibly that (4) the person selected to replace the plaintiff was not within the same protected class. Rios v. Rossotti, 252 F.3d 375, 378 (5th Cir. 2001).
It is undisputed that Jefferson's employment contract was not renewed for the 2000-2001 school year as required by the first prong above. Moreover, as an African-American, Jefferson clearly falls within a protected group and thereby satisfies the third prong of the prima facie test. See Okoye v. University of Texas Houston Health Science Center, 245 F.3d 507, 513 (5th Cir. 2001).
Although the parties disagree as to whether Plaintiff satisfies the second element-the District claims that the deficiencies in Ms. Jefferson's on-the-job performance establishes that she was not qualified for the receptionist's job-the fact that she was initially hired, based upon her prior work experience suffices, in the court's opinion, to make a sufficient showing on this prong.
As to the fourth prong, the replacement element, the court notes that such a requirement is only a possible element. Whether this criterion is necessary to establish a prima facie case is, at least, ambiguous in this circuit. This ambiguity is aptly demonstrated in the court's opinion in Byers v. The Dallas Morning News, Inc., 209 F.3d 419, 426-27 (5th Cir. 2000).
In Byers, the opinion noted the Fifth Circuit's prior opinion in Hornsby v. Conoco, Inc., 777 F.2d 243 (5th Cir. 1985), wherein the court disagreed with the district court's determination that the female plaintiff's discrimination suit was foreclosed by virtue of the fact that she was replaced by another female. The court also referred to its prior decision in Neito v. LH Packing, Co., 108 F.3d 621, 624 n. 7 (5th Cir. 1997), wherein the court cautioned against applying the four-prong prima facie test too mechanically. In conclusion, the Byers court, by way of dicta, observed that: "The Neito opinion appears to allow courts to find a prima facie case even where an employee has been replaced by a person of the same race." Id. at 427 (emphasis added). The Rios case does not shed further light on the issue since the defendant conceded that at least one position for which the plaintiff applied was filled by a person not within the same protected class. Rios v. Rossotti, supra, 252 F.3d at 378.
If in fact this is a necessary prerequisite element of Plaintiff's prima facie case, it is clear that she has failed to make the necessary showing. It is undisputed that after Mr. Risner was replaced by a new principal, Mr. Mitchell, who was also an African-American, Ms. Miller and Mr. Mitchell hired, Chantel Nealy, an African-American to replace Plaintiff as the junior high school's receptionist. See Def's App. Ex. 3 at ¶ 16 (Miller's affidavit).
Plaintiff's affidavit in opposition to Defendant's motion for summary judgment on this issue is neither competent, nor relevant (Pl.'s Aff. at ¶ 7). Not only is it hearsay, but it does not contain any competent evidence, that Ms. Nealy's cessation of employment was an involuntary termination or that it was in any way racially motivated.
In addressing Defendant's motion for summary judgment, the court declines to consider this fourth element as a sine qua non of a prima facie showing. However, in addressing whether Ms. Jefferson can establish a genuine issue of fact as to whether Defendant's reasons for her termination are pretextual, see infra, the fact that she was replaced by another African-American female is "certainly material to the question of discriminatory intent." See Neito, supra, 108 F.3d at 624.
Under the tripartite burden-shifting analysis established by McDonnell Douglas v. Green, 411 U.S. at 802-04, 93 S.Ct at 1824-25, once Jefferson has established a prima facie case of discrimination, the burden shifts to the District to articulate a legitimate, non-discriminatory reason for not renewing Jefferson's employment contract. Id. If the District satisfies this burden, the burden shifts back to Jefferson, who must prove that "the legitimate reasons offered by the defendant [for not renewing her contract] were not its true reasons, but were a pretext for discrimination." Reeves v. Sanderson Plumbing Products, 120 S.Ct. 2104-05,147 L.Ed.2d 105 (2000). Plaintiff can establish pretext either directly, by showing a discriminatory reason motivated management, or indirectly, by showing that the reasons given for management's actions are simply not believable. Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). In either respect, "[t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff." Reeves, 120 S.Ct. at 2106 citing Burdine, 450 U.S. at 253, 101 S.Ct. 1089.
In an effort to meet its burden of production, Defendant asserts that Plaintiff's termination was based on deficiencies in her performance and was in no way related to her race. See Aff.'s of Curt Risner and Debi Miller (Def.'s App. Ex.'s 2 and 3), discussed at pp. 2-3, supra. The stated reasons for her termination are clearly unrelated to Plaintiff s race, which shifts the burden back to Plaintiff to show the existence of a genuine issue of fact as to whether Defendant's stated reasons are pretextual.
In an effort to show that Defendant's reasons for her termination were a pretext for racial discrimination, Ms. Jefferson relies on portions of her deposition testimony and her affidavit executed on October 17, 2001.
It is undisputed that numerous deficiencies in Plaintiff's performance occurred during the term of her employment with Defendant. These shortcomings were personally observed in some instances by her supervisors and were at other times noted based upon complaints made by others, including other school district employees.
However, Ms. Jefferson asserts that these incidents did not give rise to the non-renewal of her employment for the succeeding school year. In an effort to demonstrate that her termination was racially motivated, she suggests that she was the victim of disparate treatment when compared to her white, fellow office employees.
Aside from Plaintiff's subjective belief that Ms. Miller's treatment of her was racially motivated, she identifies only a single incident in which Ms. Miller blamed her for an inappropriate greeting on the phone, even though a co-worker admitted that she was the one responsible for the error (See Pl.'s Dep. at 61-2). However, the date of this incident does not appear in the record, nor does it appear to relate to the "unsatisfactory" performance rating which Plaintiff received from Mr. Risner in May 2000. It is equally relevant that at no time did Ms. Miller make any racially charged remarks to or about Plaintiff.
Plaintiff also recites in her opposition affidavit that Ms. Miller affirmatively sought out complaints about her from other school district employees (Aff. at ¶ 6). However, such recitations as to the statements of third parties constitute inadmissible hearsay and, as such, are insufficient to demonstrate the existence of a genuine issue of fact.
Ms. Jefferson's claim of disparate treatment is likewise insufficient. It is undisputed that in her capacity as the school's receptionist, Plaintiff was primarily responsible for answering the telephone (See Def.'s App. Ex. 3 C). Although others employed in the office were responsible for answering the telephone in Ms. Jefferson's absence, it is self-evident why she would be required to notify Ms. Miller when she was leaving the office for short periods of time-to insure that the phones were answered. Nothing about this requirement implicates an intent to discriminate.
To the extent that she otherwise alleges disparate treatment, in order to show she was a victim, thus inferring race discrimination, Plaintiff would be required to show that co-workers-assigned the same or similar tasks-were the subject of deficiency complaints of the same tenor and frequency as those directed against her, but that such deficiencies were overlooked or were not dealt with, with the same severity. Ms. Jefferson has not presented any admissible evidence to make such a showing.
Finally, the fact that Plaintiff was replaced by another African-American female erodes completely any probability that a reasonable jury could find that the termination of her employment by Defendant was racially discriminatory. See Neito v. LH Packing, Co., supra, 108 F.3d at 624.
2. Hostile Work Environment claim
Jefferson also alleged that conduct of Ms. Miller and others created a hostile work environment (Pl.'s First Am. Compl. ¶ 6).
The District contends that Jefferson is precluded from proceeding with an alleged a cause of action for hostile work environment because such a claim is neither "like [n]or related to" the allegation of race discrimination contained in her EEOC charge. See Vuyanich v. Republic Nat'l Bank of Dallas, 723 F.2d 1195, 1201 (5th Cir. 1991), cert. denied, 469 U.S. 1073 (1984). According to the District, the scope of a court's jurisdiction involving a Title VII action is limited to the scope of the EEOC investigation, if undertaken, which can reasonably be expected to grow out of the charge of discrimination. See Clark v. Kraft Foods, Inc., 18 F.3d 1278, 1279 (5th Cir. 1994) citing Young v. The City of Houston, Texas, 906 F.2d 177, 179 (5th Cir. 1990). In Clemmer v. Enron Corp., 882 F. Supp. 606, 610 (S.D.Tex. 1995), the court held "[t]he reasonable limits of an EEOC investigation have been held to include . . . claims which arise as a reasonable consequence of the claims alleged in the EEOC charge."
Courts do not have jurisdiction to consider claims brought under Title VII unless the aggrieved party has first exhausted his administrative remedies by filing a charge with the Equal Employment Opportunity Commission ("EEOC"). See 42 U.S.C. § 2000e-5(f)(1); National Ass'n of Gov't Employees v. City Pub. Serv. Bd. Of San Antonio, 40 F.3d 698, 711 (5th Cir. 1994); Clark v. Kraft Foods, Inc., 18 F.3d at 1279. The EEOC charge serves the primary purpose of providing the employer with notice of the alleged discrimination so that it may begin to activate appropriate conciliatory measures. Terrell v. United States Pipe Foundry Co., 644 F.2d 1112, 1122-23 (5th Cir. 1981), vacated on other grounds, 456 U.S. 955 (1982). Accordingly, the failure to assert a claim of discrimination in the EEOC charge or for it to be developed in the course of a reasonable EEOC investigation of that charge prohibits the claim from later being brought in a civil suit. National Ass'n of Gov't Employees, 40 F.3d at 711-12.
Plaintiff's EEOC complaint was not filed until after her employment for the 2000-2001 school year was not renewed. See Pl.'s First Am. Compl. filed on August 24, 2001, Ex. A). It is clear that her EEOC Charge of Discrimination did not claim that she was the victim of a hostile work environment. Further, there is no showing that the EEOC's investigation included any review of the work environment, while Ms. Jefferson was employed, at Lancaster Junior High School. Id. Ex. B, Notice of Right to Sue (Dismissal). Therefore, Plaintiff's hostile environment claim is subject to dismissal for lack of jurisdiction.
Alternatively, there is no basis from which a jury could reasonably find that Plaintiff was subjected to a hostile work environment which is actionable under Title VII and, therefore, Defendant is entitled to summary judgment.
In order to demonstrate an actionable claim based on hostile work environment in violation of Title VII, a plaintiff must prove each of the following elements: "(1) racially discriminatory intimidation, ridicule, and insults that are; (2) sufficiently severe or pervasive that they; (3) alter the conditions of employment; and (4) create an abusive working environment." Walker v. Thompson, 214 F.3d 615, 625 (5th Cir. 2000). Suffice it to say, Plaintiff's evidence in opposition to Defendant's motion for summary judgment fails to create a genuine issue of fact on any of the required elements.
C. 42 U.S.C. § 1981
Although Plaintiff previously advised that she was withdrawing her § 1981 claim and has not filed responsive pleadings and evidence relating to such a claim in her response to Defendant's motion for summary judgment, since she re-asserted it in her First Amended Complaint filed on August 24, 2001, the court will briefly address it.
To the extent that any claim under § 1981 is not supplanted by or subsumed into claims in an employment context based on Title VII it is clear that in order to hold a governmental entity, such as Defendant, liable under § 1981, a plaintiff must allege and prove that the governmental defendant implied a policy, custom, or practice which caused the plaintiff to be subjected to the deprivation of a constitutional right. See, e.g., Lopez v. Houston I.S.D., 817 F.2d 351, 353-54 (5th Cir. 1987). The fact that Plaintiff s response is silent with respect to any claim under either § 1981 or § 1983 suggests she has abandoned this cause of action. However, to the extent that it remains a "pleaded claim," it is clear that neither her First Amended Complaint nor her summary judgment response demonstrates a cognizable § 1981 against the Defendant.
D. Intentional Infliction of Emotional Distress
The situation with respect to Plaintiff's claim for damages based on a State law cause of action for the intentional infliction of emotional distress, alleged in her amended complaint, is identical to that with respect to her § 1981. However, it is clear that the school district is immune from a suit based upon the alleged commission of an intentional tort. See TEX. CIV. PRAC. REM. CODE ANN. § 101.057(2); See also Def's Summ. J. Br. at 21-22. Moreover, even absent the presence of sovereign immunity recognized under Texas state law, the summary judgment record is devoid of any evidence sufficient to establish conduct on the part of Defendant which is so outrageous that it surpasses all bounds of decency so as to be utterly intolerable in a civilized community. See Dean v. Ford Motor Credit Co., 885 F.2d 300, 306 (5th Cir. 1989), citing RESTATEMENT (SECOND) OF TORTS § 46, cmt. d.; see also Estate of Martinson v. Arco Chemical Co., 203 F.3d 904, 913 (5th Cir. 2000).
E. Conclusion
For the forgoing reasons it is ORDERED that Defendant's Motion for summary judgment is GRANTED, and that judgment dismissing Plaintiff's complaint with prejudice will be entered.