Opinion
Civil Action No. 3:00-CV-0553-L
January 31, 2002
MEMORANDUM OPINION AND ORDER
Before the court are the following:
1. Defendant's Motion for Partial Judgment on the Pleadings and Brief, filed August 21, 2001;
2. Defendant's Motion for Partial Summary Judgment, filed August 31, 2001;
3. Plaintiff Clarence Lauderdale's Response in Opposition to Defendant's Partial Motion for Summary Judgment, filed September 25, 2001;
4. Plaintiff Clarence Lauderdale's Brief in Opposition to Defendant's Partial Motion for Summary Judgment, filed September 25, 2001;
5. Plaintiff's Response and Brief in Opposition to the Defendant's Motion for Partial Judgment on the Pleadings, filed September 25, 2001;
6. Defendant's Reply to Plaintiff's Response to Defendant's Motion for Partial Summary Judgment, filed October 10, 2001;
7. Defendant's Supplemental Briefing, filed January 10, 2002; and
8. Plaintiff Clarence Lauderdale's Supplemental Brief in Opposition to Defendant's Partial Motion for Summary Judgment, filed January 11, 2002.
The court, after careful consideration of the motions, briefs, responses, reply, evidence, and applicable law, grants Defendant's Motion for Partial Judgment on the Pleadings; and grants Defendant's Motion for Partial Summary Judgment.
I. Procedural History and Factual Background
Plaintiff Clarence Lauderdale ("Plaintiff" or "Lauderdale") filed this action against Defendant City of Arlington ("Defendant" or "City") on March 13, 2000. Lauderdale contends that the City discriminated against him on account of his race, color, and national origin; and retaliated against him for complaining of unlawful acts in violation of the Civil Rights Act of 1964 as amended (Title VII), 42 U.S.C. § 2000e et seq; violated his rights under 42 U.S.C. § 1983 to be free from racial discrimination as an employee of a public employer; and violated the Age Discrimination in Employment Act ("ADEA"), 42 U.S.C. § 621-634. Finally, Plaintiff asserts a state law claim for false imprisonment, contending that he was placed under "house arrest" during the time allegations of misconduct against him were being investigated.
Defendant City contends that it did not discriminate against Plaintiff on account of his race, national origin, or age, and that it did not retaliate against Plaintiff for filing charges of discrimination. The City also contends that Plaintiff voluntarily retired and was not constructively discharged as he alleges. The City further contends that the statute of limitations has run on all claims arising from the first and second charges of discrimination filed by Plaintiff with the Equal Employment Opportunity Commission ("EEOC"). Finally, the City contends that Plaintiff was not falsely imprisoned and, even if he were, the City has absolute immunity from such intentional torts.
The court now sets forth the applicable facts on which it relies to determine the pending motions. The facts relied on are largely undisputed. Any fact in actual dispute is of course presented in the light most favorable to Lauderdale. The standard for deciding each pending motion is set forth later in this opinion.
Lauderdale was hired by the City on January 30, 1984. He was promoted to jail supervisor and held that position until his employment with the City was terminated in December 1999. Lauderdale contends that he was "constructively discharged," and the City contends that he voluntarily retired.
Prior to Lauderdale's separation from the City in December 1999, certain events took place between him and the City, and a recitation of these events puts the issues in their proper perspective. On December 31, 1998, Lauderdale filed his first charge of discrimination with the EEOC. He contended that the City discriminated against him because of his race (African American) and retaliated against him for complaining of conduct of the City that he deemed to be unlawful. Specifically, he stated:
From on or about June 29, 1998 I have been been [sic] treated differently than my non-Black co-workers, in that I have been subjected to harassment by being given numerous memos for observed/reported problems. On July 21, 1998 I received a low evaluation. On August 18, 1998 I received a verbal warning. On December 29, 1998 I received a Personnel Complaint.
The EEOC issued Lauderdale his "Notice of Right to Sue" letter for this charge on February 18, 1999.
Lauderdale filed his second charge of discrimination with the EEOC on August 10, 1999. He contended the City discriminated against him because of his race. He complained about the City's alleged unlawful conduct and that the City retaliated against him because he had filed an earlier charge in December 1998. Specifically, he contended:
I was disciplined more severely than White coworkers similiarly [sic] situated. In January 1999, I was removed from my supervisory duties and placed in a secluded area. I was replaced by a White employee with similar allegations (using excessive force on an inmate) against him. He was not removed from his supervisory role as I. I returned to my supervisory role after an investigation which did not support the allegations.
The EEOC issued Lauderdale his "Notice of Right to Sue" letter for this charge on August 10, 1999.
Also, on August 10, 1999, Lt. Bill Weatherly and Sgt. Tim Anderson placed Lauderdale on a ninety-day Performance Improvement Program (PIP). The PIP described a number of areas in which Weatherly and Anderson believed Lauderdale's performance to be deficient. On November 9, 1999, Arlington Police Chief Theron Bowman placed Lauderdale on administrative leave with pay pending review of his performance during his PIP by the chain of command. The order required, among other things, for Lauderdale to "remain available for interviews with Internal Affairs between the hours of 0800 and 1700, Monday through Friday" and instructed him to notify Internal Affairs if he were not available as stated.
On December 14, 1999, Lauderdale filed his third charge of discrimination with the EEOC. In this charge, he contended that the City once again discriminated against him because of his race. Specifically, he stated, "On November 17, 1999, I was forced to retire, effective December 31, 1999." He did not include a claim of retaliation in this charge. The EEOC issued Lauderdale his "Notice of Right to Sue" letter regarding this charge on December 14, 1999.
Lauderdale filed his fourth and final charge of discrimination with the EEOC on January 26, 2000. He contended that the City discriminated against him based on his color (black) and national origin (African American), retaliated against him for having filed the three previous charges of discrimination, and discriminated against him on account of his age (61). Specifically, Lauderdale stated:
1. On November 9th 1999, I was put on paid administrative leave pending an investigation for allegations of failing to perform my job.
2. On November 11th 1999, I was replaced by Steve Jaeger, a caucasian [sic] mle [sic] in his thirties.
3. On November 17, 1999, I was forced to retire effective December 31, 1999 because I was threatened with losing benefits.
The EEOC issued Plaintiff his "Notice of Right to Sue" letter for this charge on January 26, 2000.
Defendant City first filed a motion for partial judgment on the pleadings and then filed a motion for partial summary judgment. The City contends that as a matter of law, the motion for partial judgment on the pleadings entitles it to dismissal of Plaintiff's 1983 claim because Plaintiff has failed to meet the minimum pleading requirements to allege liability against a municipality, and that it is immune from the intentional tort of false imprisonment. Regarding its partial summary judgment motion, the City contends that it is entitled to dismissal of Plaintiff's remaining claims because there is no genuine issue of material fact regarding any of the claims asserted by him. Plaintiff, of course, disagrees and contends that his pleadings are adequate to withstand a motion for judgment on the pleadings. He further contends since genuine issues of material fact are present regarding all of his claims, the City is not entitled to summary judgment. The court now considers the City's motions in the order in which they were filed.
II. The City's Motion for Partial Judgment on the Pleadings
A. Standard for Judgment on the Pleadings
Any party may move for judgment on the pleadings after the pleadings are closed and when it would not delay the trial. Fed.R.Civ.P. 12(c). A motion brought pursuant to Rule 12(c) "is designed to dispose of cases where the material facts are not in dispute and a judgment on the merits can be rendered by looking to the substance of the pleadings and any judicially noticed facts." Hebert Abstract Co., Inc. v. Touchstone Properties, Ltd., 914 F.2d 74, 76 (5th Cir. 1990). If, however, matters outside the pleadings are also presented to the court for consideration, a Rule 12(c) motion must be treated as one for summary judgment. See Fed.R.Civ.P. 12(c); Darlak v. Bobear, 814 F.2d 1055, 1064 (5th Cir. 1987). "Like a motion for summary judgment, a 12(c) motion should be granted only if there is no issue of material fact and if the pleadings show that the moving parties are entitled to judgment as a matter of law." Perez v. Brown Williamson Tobacco Corp., 967 F. Supp. 920, 924 (S.D.Tex. 1997). A ruling on a motion for judgment on the pleadings pursuant to Rule 12(c) is reviewed under the same standard as a motion to dismiss under Fed.R.Civ.P. 12(b)(6) for failure to state a claim. GATX Leasing Corp. v. Nat'l Union Fire Ins. Co., 64 F.3d 1112, 1114 (7th Cir. 1995); see also St. Paul Ins. Co. of Bellaire, Tex. v. AFIA Worldwide Ins. Co., 937 F.2d 274, 279 (5th Cir. 1991).
A motion to dismiss for failure to state a claim under Fed.R.Civ.P. 12(b)(6) "is viewed with disfavor and is rarely granted." Lowrey v. Texas AM Univ. Sys., 117 F.3d 242, 247 (5th Cir. 1997). A district court cannot dismiss a complaint, or any part of it, for failure to state a claim upon which relief can be granted "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Blackburn v. City of Marshall, 42 F.3d 925, 931 (5th Cir. 1995). In reviewing a Rule 12(b)(6) motion, the court must accept all well-pleaded facts in the complaint as true and view them in the light most favorable to the plaintiff. Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996). In ruling on such a motion, the court cannot look beyond the pleadings. Id.; Spivey v. Robertson, 197 F.3d 772, 774 (5th Cir. 1999), cert. denied, 530 U.S. 1229 (2000). The ultimate question in a Rule 12(b)(6) motion is whether the complaint states a valid cause of action when it is viewed in the light most favorable to the plaintiff, and with every doubt resolved in favor of the plaintiff. Lowrey, 117 F.3d at 247. A plaintiff, however, must plead specific facts, not mere conclusory allegations, to avoid dismissal. Guidry v. Bank of LaPlace, 954 F.2d 278, 281 (5th Cir. 1992).
B. Plaintiff's 1983 Claim
Plaintiff contends under his 1983 claim that the City "violated rights independent of Title VII," which include the "right to be free to testify without retaliation" and Plaintiff's "entitle[ment] to be free from racial discrimination when employed by a public employer." Plaintiff's Original Complaint 46. Lauderdale contends that the conduct of the City constituted illegal employment practices that "encroached on the Plaintiff's constitutional rights under 42 U.S.C. § 1983, creating supplemental remedies." Id. Defendant City contends that the 1983 claim should be dismissed because Plaintiff does not state the law or statute that was allegedly violated which forms the basis of his claim, and that he has not alleged with minimal specificity the policy or custom of the City of Arlington that allegedly caused him to suffer injury. The court agrees.
Section 1983 creates no substantive or independent rights but is a vehicle for "vindicating rights elsewhere conferred by the Constitution and federal statutes." Baker v. McCollan, 443 U.S. 137, 145 n. 3 (1979). Based upon Plaintiff's pleadings as previously described, the court cannot ascertain the federal law that was allegedly violated by the City and serves as the basis for Plaintiff's 1983 claim. Accordingly, dismissal of the 1983 claim is appropriate.
Second, the court notes that Plaintiff fails to state a claim upon which relief can be granted regarding a policy or custom of the City. To resolve the issue presented by this motion, the court first cites the relevant authority which serves as a backdrop under which a local government can be held liable pursuant to 42 U.S.C. § 1983. A governmental entity can be sued and subjected to monetary damages and injunctive relief under 42 U.S.C. § 1983 only if its official policy or custom causes a person to be deprived of a federally protected right. Board of the County Comm'rs of Bryan County v. Brown, 520 U.S. 397, 403 (1997); Monell v. New York City Dep't of Soc. Servs., 436 U.S. 658, 694 (1978). The governmental entity's conduct must be the "moving force" behind the injury alleged by a plaintiff. Board of the County Comm'rs of Bryan County v. Brown, 520 U.S. at 404. A governmental entity cannot be liable for civil rights violations under a theory of respondeat superior or vicarious liability. Id. See also Baskin v. Parker, 602 F.2d 1205, 1208 (5th Cir. 1979).
In light of Fed.R.Civ.P. 8(a)(2) and Leatherman v. Tarrant County Intelligence Coordination Unit, 507 U.S. 163, 168 (1993), Plaintiff must provide in his pleadings "a short and plain statement that the pleader is entitled to relief." The "short and plain statement" must contain facts "that will give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Leatherman, 507 U.S. at 168 (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). While it is not necessary for a plaintiff to prove or establish at this stage that he was injured as a result of a specific policy or custom of the City, requiring him to identify the specific policy or custom and allege that the policy or custom adopted by the City or a policymaking official was the "moving force" behind the alleged constitutional violation is in no way inconsistent with notice pleading or the mandate of Leatherman. Such requirement actually complements Rule 8 in that it puts a defendant on notice of the grounds on which a plaintiff's claim rests. In other words, the allegations of a complaint must not be conclusory; otherwise, a defendant is not placed on notice of the grounds for the claim. Conclusory allegations cannot survive a motion to dismiss. See Guidry, 954 F.2d at 281.
The court believes that language from two Fifth Circuit cases decided after Leatherman is illustrative and controlling: Spiller v. City of Texas City, Police Dep't, 130 F.3d 162 (5th Cir. 1997), and Meadowbriar Home for Children, Inc. v. Gunn, 81 F.3d 521 (5th Cir. 1996). In Spiller, the court stated:
In order to hold a municipality or a local government unit liable under Section 1983 for the misconduct of one of its employees, a plaintiff must initially allege that an official policy or custom "was a cause in fact of the deprivation of rights inflicted." Leffall v. Dallas Indep. Sch. Dist., 28 F.3d 521, 525 (5th Cir. 1994). To satisfy the cause in fact requirement, a plaintiff must allege that "the custom or policy served as the moving force behind the [constitutional] violation" at issue, Meadowbriar Home for Children, Inc. v. Gunn, 81 F.3d 521, 533 (5th Cir. 1996), or that her injuries resulted from the execution of the official policy or custom, Fraire v. Arlington, 957 F.2d 1268, 1277 (5th Cir. 1992). The description of a policy or custom and its relationship to the underlying constitutional violation, moreover, cannot be conclusory; it must contain specific facts.Spiller, 130 F.3d at 1278. Embodying this same principle and requirement with respect to pleading a cause of action regarding municipal policy or custom, but stated somewhat differently, the court in Meadowbriar stated:
To support a claim based upon the existence of an official custom or policy, the Plaintiff must plead facts which show that: 1) a policy or custom existed; 2) the governmental policy makers actually or constructively knew of its existence; 3) a constitutional violation occurred; and 4) the custom or policy served as the moving force behind the violation.Meadowbriar, 81 F.3d at 532-33 (citation omitted).
The court has reviewed Plaintiff's Original Complaint in detail and finds that it does not contain the basic and fundamental allegations to put the City on notice as to the bases for Lauderdale's 1983 claim. The only operative language that relates to a 1983 claim is that previously referenced by the court on page 4 of this opinion. Lauderdale's complaint does not meet the basic requirements for pleading municipal liability under 1983. The court concludes that the allegations in Plaintiff's Complaint are conclusory and inadequate with respect to any alleged illegal policy or custom of the City. As such, they fail to state a claim upon which relief can be granted.
C. Plaintiff's False Imprisonment Claim
Plaintiff contends that the City placed him under "house arrest" and that the "house arrest" constituted false imprisonment under Texas common law. The City contends that Plaintiff's false imprisonment claim against it is barred by the doctrine of sovereign immunity. The court agrees.
Local governments are immune from suit except to the extent waived by the Texas Tort Claims Act, Tex. Civ. Prac. Rem. Code 101.021 (Vernon 1997). See City of Lancaster v. Chambers, 883 S.W.2d 650, 658 (Tex. 1994); see also Morris v. Copeland, 944 S.W.2d 696, 699 (Tex.App.-Corpus Christi 1997, no writ). A local government is immune from any claim "arising out of assault, battery, false imprisonment, or any other intentional tort." Tex. Civ. Prac. Rem. Code, 101.057(2) (Vernon 1997); see also City of Hempstead v. Kmiec, 902 S.W.2d 118, 122 (Tex.App.-Houston [1st Dist.] 1995, no writ). Accordingly, the City can incur no liability on Plaintiff's state tort claim of false imprisonment, and dismissal of this claim is appropriate.
Plaintiff contends that even if Defendant is immune from the state tort of false imprisonment, the act(s) which he contends constitute false imprisonment can be considered as incidents of discrimination or retaliation. The court finds it unnecessary to address this contention because it concludes later in this opinion that Plaintiff suffered no adverse employment action.
D. Plaintiff's Invasion of Privacy Claim
Lauderdale states in his complaint that the same conduct which forms the basis of his false imprisonment claim also constitutes an invasion of privacy. Plaintiff's Original Complaint 62, p. 14. This is the only place in which Lauderdale mentions invasion of privacy. The invasion of privacy language is contained in count four of Plaintiff's complaint under the heading "State Common Law Cause of Action for False Imprisonment against Wells Fargo." Id. At 14. This action is not one against Wells Fargo, and it appeared that the invasion of privacy claim was a remnant from some other lawsuit brought by Plaintiff's counsel. The court was therefore uncertain whether Plaintiff intended to assert an invasion of privacy claim. To clear up the uncertainty, the court directed the parties to supplement their briefing on this claim, and both have filed their supplemental briefing.
In his supplemental brief, Plaintiff Lauderdale concedes that governmental immunity bars his invasion of privacy claim. The court agrees that it does for the same reasons the court concluded that governmental immunity bars Plaintiff's false imprisonment claim.
Plaintiff's invasion of privacy claim fails even if governmental immunity did not apply. Under Texas law, initially there were four ways a person could establish the tort of invasion of privacy: (1) intrusion upon the plaintiff's seclusion or solitude, or into his private affairs; (2) public disclosure of embarrassing private facts about the plaintiff; (3) publicity which places the plaintiff in a false light in the public eye; and (4) appropriation, for the defendant's advantage, of the plaintiff's name or likeness. Industrial Found. of the South v. Texas Indus. Accident Bd., 540 S.W.2d 668, 682 (Tex. 1976). The Texas Supreme Court has since abolished the third kind of invasion of privacy. See Cornhill Ins. PLC v. Valsamis, Inc., 106 F.3d 80, 85 n. 5 (5th Cir.), cert. denied, 522 U.S. 818 (1997); Cain v. Hearst Corp., 878 S.W.2d 577, 579 (Tex. 1994). Lauderdale alleges no set of facts that could establish that the City (a) intruded upon his seclusion or solitude, or into his private affairs; (b) disclosed publicly embarrassing private facts about him; or (c) appropriated, for its advantage, his name or likeness. For this additional reason, Lauderdale's invasion of privacy claim fails as a matter of law.
III. The City's Motion for Partial Summary Judgment
A. Summary Judgment Standard
Summary judgment shall be rendered when 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, 323-25 (1986); Ragas v. Tennessee Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998). A dispute regarding a material fact is "genuine" if the evidence is such that a reasonable jury could return a verdict in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When ruling on a motion for summary judgment, the court is required to view all inferences drawn from the factual record in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986); Ragas, 136 F.3d at 458.
Once the moving party has made an initial showing that there is no evidence to support the nonmoving party's case, the party opposing the motion must come forward with competent summary judgment evidence of the existence of a genuine fact issue. Matsushita, 475 U.S. at 586. Mere conclusory allegations are not 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). Unsubstantiated assertions, improbable inferences, and unsupported speculation are not competent summary judgment evidence. See Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir.), cert. denied, 513 U.S. 871 (1994). 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 his claim. Ragas, 136 F.3d at 458. Rule 56 does not impose a duty on the court to "sift through the record in search of evidence" to support the nonmovant's opposition to the motion for summary judgment. Id.; see also Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915-16 n. 7 (5th Cir.), cert. denied, 506 U.S. 832 (1992). "Only disputes over facts that might affect the outcome of the suit under the governing laws will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248. Disputed fact issues which are "irrelevant and unnecessary" will not be considered by a court in ruling on a summary judgment motion. Id. If the nonmoving party fails to make a showing sufficient to establish the existence of an element essential to its case and on which it will bear the burden of proof at trial, summary judgment must be granted. Celotex, 477 U.S. at 322-23.
B. Statute of Limitations Defense
The City contends that all claims asserted in Lauderdale's first and second charges to the EEOC are barred by limitations because he did not file suit within ninety days of the time he received his "Notice of Right to Sue" letter from the EEOC. Lauderdale appears to acknowledge that his is not including any alleged acts contained in his first two EEOC charges as the basis for any claims in this action and states that the first two charges were only included in his Complaint to "evidence a pattern and practice of wrongful and discriminatory conduct, including retaliation, after the filing of the first two charges, which pattern and practice of conduct is [sic] admissible as written testimony as is oral testimony." Plaintiff's Brief in Opposition to Defendant's Motion for Partial Summary Judgment at 5. The court agrees that nothing in the first two charges can be the basis for a complaint in this action.
Title VII provides that if the EEOC dismisses a charge brought by a person aggrieved by unlawful employment practices or does not file a civil action based on the charge within a specified time period, the EEOC must "notify the person aggrieved and within ninety days after the giving of such notice a civil action may be brought against the respondent named in the charge." 42 U.S.C. § 2000e-5(f)(1); see also Espinoza v. Missouri Pacific R.R. Co., 754 F.2d 1247, 1248 n. 1 (5th Cir. 1985). With respect to the first two charges of discrimination, the EEOC issued right-to-sue letters on February 18, 1999, and August 10, 1999. This action was filed on March 13, 2000. Lauderdale presents no evidence to raise an issue regarding his receipt of the notices, and since the evidence in the record establishes that more than ninety days passed after the notices were issued to Lauderdale by the EEOC and between the time this action was filed, any claim in this action based on the alleged conduct of the first two claims is barred by the ninety-day statute of limitations. Moreover, Lauderdale acknowledges that only the "last two charges form the basis of this current lawsuit." Affidavit of Clarence Lauderdale, Plaintiff's App. at 1F. Accordingly, the court will focus only on the alleged conduct as stated in Plaintiff's third and fourth charges to the EEOC, and all references by Plaintiff to allegedly discriminatory or retaliatory conduct that falls outside these two charges have been disregarded by the court. The third and fourth charges relate to events that occurred on November 9, 1999; November 11, 1999; November 17, 1999; and after December 31, 1999.
C. Plaintiff's Title VII Race Discrimination Claim and ADEA Claim
1. Plaintiff's Title VII Race Claim
Under the applicable burden-shifting paradigm for Title VII race discrimination claims, Lauderdale must establish a prima facie case of discrimination; the City must then articulate a legitimate, nondiscriminatory reason for its action; and finally, if the parties satisfy their initial burdens, the case reaches the "pretext state" and Lauderdale must then adduce sufficient evidence to permit a reasonable trier of fact to find pretext or intentional discrimination. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973); Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); Byers v. Dallas Morning News, Inc., 209 F.3d 419, 425-26 (5th Cir. 2000). The Fifth Circuit has stated:
To establish a prima facie case of discrimination under Title VII, a plaintiff may prove her claim either through direct evidence, statistical proof, or the test established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). The McDonnell Douglas test requires the plaintiff to show: (1) she was a member of a protected class, (2) she was qualified for the position she lost, (3) she suffered an adverse employment action, and (4) that others similarly situated were more favorably treated.Urbano v. Continental Airlines, Inc., 138 F.3d 204, 206 (5th Cir.), cert. denied, 525 U.S. 1000; see also Rutherford v. Harris County, Tex., 197 F.3d 173, 184 (5th Cir. 1999); Shackleford v. Deloitte Touche, LLP, 190 F.3d 398, 404 (5th Cir. 1999); Ward v. Bechtel Corp., 102 F.3d 199, 202 (5th Cir. 1997). Although Urbano and Rutherford are sex discrimination cases, the same standard applies to race discrimination cases, as the statute was enacted to prohibit both kinds of discrimination. Moreover, these two cases cite McDonnell Douglas for the proposition that these elements are required to establish a prima facie case for Title VII discrimination cases.
2. Plaintiff's ADEA Claim
Plaintiff contends that he was forced to retire from his employment with the City because of his age. The City contends that Lauderdale's ADEA claim fails as a matter of law because he cannot show that he suffered an adverse employment action, a necessary element to establish a prima facie case.
The ADEA makes it unlawful for an employer to "discharge an individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." 29 U.S.C. § 623(a); Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 141 (2000); Brown v. CSC Logic, Inc., 82 F.3d 651, 654 (5th Cir. 1996). A plaintiff may establish a claim of discrimination under the ADEA by either presenting direct evidence or by using the indirect method of proof set forth in McDonnell Douglas v. Green, 411 U.S. 792 (1973). See Fields v. J.C. Penney Co., Inc., 968 F.2d 533, 536 (5th Cir. 1992). To establish a prima facie case of age discrimination, a plaintiff must set forth evidence showing that 1) he was discharged; 2) he was qualified for his position; 3) he was within the protected class; and 4) he was replaced by someone outside the protected class, or by someone younger, or that he was otherwise discriminated against because of his age. Id.; Brown, 82 F.3d at 654; Moore v. Eli Lilly Co., 990 F.2d 812, 815 (5th Cir.), cert. denied, 510 U.S. 976 (1993). If the plaintiff meets this burden, the employer must then produce evidence that rebuts the presumption of age discrimination by articulating a legitimate, nondiscriminatory reason for the adverse employment action. Brown, 82 F.3d at 654. The plaintiff must then present probative evidence that the employer's stated reason was a pretext for discrimination. Id. "Although the intermediate evidentiary burdens shift back and forth under [the McDonnell Douglas] framework, '[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, 530 U.S. at 143 ( quoting Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981)). The court now turns to whether Plaintiff has successfully presented a prima facie case of age and race discrimination.
3. Adverse Employment Action
An adverse employment action is one of the necessary elements to establish a prima facie case under Title VII. For a case under the ADEA, Plaintiff must establish that he was discharged. With respect to his race and age claims, Plaintiff apparently contends that each of the following constitutes an adverse employment action:
a. his placement on paid administrative leave (November 9, 1999) pending an investigation for allegation of failing to perform his job;
b. his replacement on November 11, 1999, by Steve Jaeger, a Caucasian male in his thirties; and
c. his "forced" retirement (constructive discharge) on November 17, 1999, and made effective on December 31, 1999.
The City denies that any of these events constitutes an adverse employment action and that Plaintiff was forced to retire or constructively discharged. In resolving this issue, the court must determine whether the conduct of the City rose to the level of an adverse employment action. The court begins by stating what constitutes an adverse employment action. "Adverse employment actions include only ultimate employment decisions such as hiring, granting leave, discharging, promoting, and compensating. An employer's action does not rise to the level of an adverse employment action when it fails to have more than mere tangential effect on a possible future ultimate employment decision." Mota v. University of Texas Houston Health Sci. Ctr., 261 F.3d 512, 519 (5th Cir. 2001) (internal quotation marks, citations, and footnotes omitted). a. Administrative Leave
Lauderdale contends that he suffered an adverse employment action when the City's police chief placed him on administrative leave. The City contends that placing one on administrative leave with full pay does not constitute an adverse employment action. The court agrees. The placement of an employee on paid administrative leave or suspension with pay during the course of an investigation into the employee's conduct or performance does not constitute an adverse employment action. Breaux v. City of Garland, 205 F.3d 150, 158 164 (5th Cir.), cert. denied, 531 U.S. 816 (2000). Although Breaux involved a First Amendment claim brought under 42 U.S.C. § 1983, the court sees no reason why a claim under Title VII or the ADEA, which were both created by statute, would enjoy more protection or require a higher standard than a claim protected by the United States Constitution.
b. Replacement by a Younger White Male
Regarding this contention, the City concedes that Plaintiff's duties were "temporarily performed by a younger white employee in his thirties." The City contends that it had made no final decision regarding Plaintiff's performance. The record supports this contention. Moreover, as the court previously determined, being placed on paid administrative leave is not an adverse employment action. Accordingly, Lauderdale's being temporarily replaced by a younger white male is wholly immaterial and quite beside the point.
c. Forced Retirement (Constructive Discharge)
Lauderdale contends that he was forced to retire on November 12, 1999 and that the effective date of his retirement was December 31, 1999. Plaintiff Lauderdale asserts, as a result of alleged wrongful allegations regarding his performance, two bases for his constructive discharge claim. Lauderdale states "[h]e was forced to tender his resignation form to [the City] on or about November 17, 1999, effective December 31, 1999, in order to salvage his matching retirement benefits from the [City] and to regain his freedom from the wrongful house arrest and false imprisonment." Complaint 16.
An employee who resigns may satisfy the adverse employment action requirement by establishing a constructive discharge. To establish a constructive discharge "an employee must offer evidence that the employer made the employee's working conditions so intolerable that a reasonable employee would feel compelled to resign." Brown v. Bunge Corp., 207 F.3d 776, 782 (5th Cir. 2000). This standard necessarily requires an objective test. The question that must be determined is not whether the employee in question felt compelled to resign but whether a reasonable employee would have felt compelled to resign under such conditions. Guthrie v. J.C. Penney Co., 803 F.2d 202, 207 (5th Cir. 1986). To establish a constructive discharge, the "resignation must have been reasonable under all the circumstances." Barrow v. New Orleans Steamship Ass'n, 10 F.3d 292, 297 (5th Cir. 1997). In this respect, the Fifth Circuit has stated:
[W]e consider the following factors relevant, singly or in combination: (1) demotion; (2) reduction in salary; (3) reduction in job responsibilities; (4) reassignment to menial or degrading work; (5) reassignment to work under a younger supervisor; (6) badgering, harassment, or humiliation by the employer calculated to encourage the employee's resignation; or (7) offers of early retirement on terms that would make the employee worse off whether the offer was accepted or not.Brown v. Bunge Co., 207 F.3d at 782 (quoting Barrow v. New Orleans Steamship Ass'n, 10 F.3d at 297).
i. House Arrest
Plaintiff contends that he was placed under wrongful house arrest and false imprisonment. The court disagrees with Lauderdale's characterization. Lauderdale was placed on paid administrative leave on November 9, 2001; told to be available for an interview with the Internal Affairs Division of the Arlington Police Department between 8:00 a.m. and 5:00 p.m.; and directed to inform Internal Affairs if he was not to going to be available during the stated hours. During the course of an investigation, a police department and other governmental entities often place employees on administrative leave during the pendency of an investigation. This is not house arrest. House arrest means for one to be confined to his or her house or living quarters under guard. Lauderdale was not confined to his house under guard. The directive merely instructed him to be available for nine hours, five dates a week and to inform Internal Affairs if he would not be available. Nothing prevented Lauderdale from going to the doctor, running errands, or tending to other personal matters as long as he notified Internal Affairs. Moreover, nothing in the record even intimates that Lauderdale requested and was refused permission to conduct his personal business. Lauderdale had been on administrative leave for only six business days when he submitted his retirement papers to the City.
ii. Retirement Benefits
Plaintiff Lauderdale states in conclusory fashion that he was "wrongfully forced to resign by Defendant's police administration." According to Plaintiff, he was forced to submit his resignation to "salvage" his retirement benefits. The record does not support the conclusion asserted by Plaintiff. The record establishes that Plaintiff acted on erroneous information regarding his retirement.
Lauderdale states that he decided to submit his "retirement paperwork" once he was placed on administrative leave and Lt. Weatherly told him that he (Lauderdale) was going to be fired. In deciding to retire, Lauderdale stated "there was no use in wasting anybody's time." Deposition of Clarence Lauderdale, Plaintiff's App. at 97. Lt. Weatherly denies that either he or Sgt. Anderson made any statement to Lauderdale regarding the outcome of his performance review when he was placed on administrative leave in November 1999. Since this fact is disputed, the court accepts as true Plaintiff's statement that Lt. Weatherly told him that he was going to be fired. Even if this is true, the record establishes that Lt. Weatherly did not have the authority to fire Lauderdale. The record establishes that no determination or decision had been made by the Chief of Police of the City of Arlington, or any of its duly authorized representatives, concerning Lauderdale's performance. Even if a decision had been made by the chief in November 1999, that would not have been a final decision regarding Lauderdale's employment with the City because he could have appealed the chief's decision, assuming it was a demotion, suspension or discharge, to the director of human resources, and ultimately to the city manager. The decision would not have been final until Lauderdale exhausted all of his appeal options.
The record reveals that Plaintiff retired because he believed that if he were fired, he would lose his retirement benefits. Lauderdale had discussions with his attorney regarding this matter and in recounting communications between him and his attorney, Lauderdale stated:
We discussed it and determined that it was a possibility that if I was fired from the job that I would lose — probably lose the retirement benefits. And since I had already been removed, the best way to try to maintain some semblance of retirement benefits would be to go ahead and retire.
Deposition of Clarence Lauderdale, Plaintiff's App. at 94. When pressed on this point, Plaintiff again stated twice that he understood from his attorney that he was going to lose certain retirement benefits if he did not retire before the City fired him, if it so decided. Id. at 95.
Both Plaintiff and his attorney misunderstood the rules governing retirement from the City. The record contains no evidence that the City misled Plaintiff or his attorney about his retirement eligibility. The City is a member of the Texas Municipal Retirement System. An employee is eligible to retire from the City if (1) he or she has twenty years of service with the City, regardless of age; or (2) he or she has attained the age of 60 and has at least 10 years of service with the City. Lauderdale was eligible for retirement in November 1999 under the second category. Once an employee is eligible for retirement, no action the City takes can deprive that employee of his or her eligibility for retirement. In other words, even if the City had decided to fire Lauderdale, the discharge would not have denied or deprived Lauderdale of his pension. Whether Lauderdale retired on December 31, 1999, or whether the City discharged him on December 31, 1999, his retirement benefits would have been the same.
iii. Reasonableness of Plaintiff's Retirement
The court determines as a matter of law that the City did not force Lauderdale to retire. Lauderdale jumped the gun and "put the cart before the horse." A reasonable employee would not have deemed conditions so intolerable that he would have felt compelled to resign. No decision had been made regarding Lauderdale's performance. A reasonable person would have waited to see the outcome of his or her performance evaluation and pursued his options after the City's decision. Had Lauderdale simply waited, and had the City demoted, suspended, discharged, or assigned Lauderdale with significantly fewer job duties and responsibilities, he would have raised a genuine issue of material fact. On the other hand, Lauderdale could have been reassigned with different responsibilities and no reduction in salary or benefits. None of this ever happened because Lauderdale retired before the City took any adverse employment action against him. Lauderdale was replaced by a younger white male, but this was after he made a conscious decision to retire from the City. Indeed, it would be fatuous under the circumstances of this case to conclude that Lauderdale was constructively discharged when he was the victim of his own hand. Lauderdale has failed to create a genuine issue of material fact regarding an adverse employment action. Plaintiff thus fails to establish a prima facie case of race or age discrimination, and Defendant City is entitled to judgment as a matter of law on these claims.
Lauderdale cites the case of Stephens v. CIT Group Equipment Fin., Inc., 955 F.2d 1023, 1027-28 (5th Cir. 1992), as authority that his actions in retiring were reasonable. Stephens is inapposite to this case. In Stephens, the employer demoted the plaintiff, asked him to help train his younger successor, reduced the plaintiff's salary by more than $10,000, and reduced his area of responsibility. In addition to this treatment, the plaintiff's successor repeatedly asked him whether he was going to quit his job. The facts in Stephens were such that they could have made conditions so intolerable or unpleasant that a reasonable employee would have felt compelled to resign. None of the facts present in Stephens is present in this case, and the City had made no decision on the outcome of Plaintiff's performance. Plaintiff's reliance on Stephens is misplaced and unavailing.
D. Plaintiff's Claims of Retaliation
Lauderdale contends that the City retaliated against him because he filed charges of discrimination with the EEOC and opposed allegedly discriminatory practices and treatment directed at him by the City. The City denies that it retaliated against Lauderdale.
To defeat summary judgment, Plaintiff Lauderdale must raise a genuine issue of material fact regarding each of the following: (1) that he was engaged in a protected activity; (2) that an adverse employment action occurred; and (3) that a casual link existed between the protected activity and the adverse employment action. Long v. Eastfield College, 88 F.3d 300, 304 (5th Cir. 1996). Lauderdale's claims for retaliation fails as a matter of law because, for the reasons previously set forth by the court, he did not suffer an adverse employment action at the hands of the City. Accordingly, Lauderdale fails to establish a prima facie case of retaliation, no genuine issue of material fact exists regarding his claims of retaliation, and the City is therefore entitled to judgment as a matter of law on these claims. IV. Miscellaneous
Plaintiff also contends that he was discriminated against because of his national origin (African American) and color (black). The claims are subsumed in Plaintiff's race claim. Indeed, he refers to his race and national origin as African American. See Complaint 7, 12, 19. Moreover, in some contexts, national origin and racial discrimination are "so closely related as to be indistinguishable." Bullard v. OMI Georgia, Inc., 640 F.2d 632, 634 (5th Cir. Unit B 1981). The court finds that Plaintiff's race, color and national origin are so closely related that a separate claim for national origin and color would merely duplicate the race claim. There are situations in which a person is discriminated against because of (1) where he or she was born, (2) the country from which his or her ancestors came, or (3) the complexion of his or her skin. Such is not the case here. The clear and plain allegations of the Complaint and the summary judgment evidence make it unequivocally clear that racial discrimination is being asserted, and the claims of discrimination on the basis of national origin and color are simply superfluous. For this reason, the court does not consider them to be separate and distinct claims. Even if one could consider them as separate and distinct from the race claim, they necessarily fail because no adverse employment action was taken against Plaintiff, a necessary element to establish a prima facie case of discrimination under Title VII.
V. Conclusion
For the reasons stated herein, Defendant's Motion for Partial Judgment on the Pleadings is granted. Accordingly, Plaintiff's 42 U.S.C. § 1983 claim and his state law claims of false imprisonment and invasion of privacy are dismissed with prejudice. Also, for the reasons stated herein, there is no genuine issue of material fact regarding Plaintiff's race, national origin, color, and age discrimination claims, or Plaintiff's claims of retaliation. Accordingly, Defendant's Motion for Summary Judgment is granted, and these claims are dismissed with prejudice. The court's ruling disposes of all claims asserted by Plaintiff. Judgment will issue by separate order as required by Fed.R.Civ.P. 58.
It is so ordered.