Opinion
Action No. 4:03-CV-516-Y.
August 27, 2004
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Pending before the Court is defendant City of Arlington's Motion for Summary Judgment, filed February 26, 2004. Having carefully considered the motion and the response, the Court concludes that the motion should be GRANTED.
I. RELEVANT BACKGROUND
In analyzing the City of Arlington's motion for summary judgment, the Court is required to view the facts in the light most favorable to Overton. See Lavespere v. Niagra Mach. Tool Works, infra.
Pro-se plaintiff Michael Overton is employed as a police officer with the City of Arlington Police Department. On July 14, 1997, he filed a charge of discrimination with the Texas Commission on Human Rights ("TCHR") and the Equal Employment Opportunity Commission ("EEOC"), claiming that he was denied a promotion to sergeant in 1996 because of his race and age. (Def.'s App. at 108.) Overton received a right-to-sue letter on March 12, 1998. (Def.'s App. at 111.) However, he chose not to file a suit against the City of Arlington.
Thereafter on February 18, 2003, Overton filed another charge with the TCHR and the EEOC. Overton received a rightto-sue letter on February 27. Thereafter, on May 27, he filed suit against the City of Arlington, claiming that he had been retaliated against for filing the prior complaint in 1997.
In the charge of discrimination, Overton stated:
Since filing EEOC Charge No. 310 97 2585, I have been subjected to a hostile work environment and retaliated against. Frequently, I have been denied promotions, and permanent detective assignments, and lateral transfers. On or about January 9, 2003, I was denied a detective promotion in the South Patrol Division. Since on or about June 1, 2002, and November 1, 2002, I have been subjected to complaints of a frivolous nature and subjected to internal affairs investigations. For the June 1, 2002, complaint I was issued a written reprimand, however, other officers, who have committed the same infraction but who have not filed an EEOC charge, have received less severe discipline. The second complaint is still under investigation.
(Pl.'s Compl., App. G at 2.)
The defendant, in its motion, argues that it is entitled to summary judgment because: (1) the acts that Overton complains about are barred by the statue of limitations because Overton did not timely file his complaint; (2) the acts that Overton complains about are not "adverse employment decisions;" and (3) there is no causal connection between the alleged acts of retaliation and the filing of Overton's charge of discrimination in 1997.
II. SUMMARY-JUDGMENT STANDARD
Summary judgment is proper 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). An issue is considered "genuine" if "it is real and substantial as opposed to merely formal, pretended, or a sham." Bazan v. Hidalgo Cty., 246 F.3d 481, 489 (5th Cir. 2001) (citing Wilkinson v. Powell, 149 F.2d 335, 337 (5th Cir. 1945)). Facts are considered "material" if they "might affect the outcome of the suit under governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 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. Niagra Mach. Tool Works, 910 F.2d 167, 178 (5th Cir. 1990). Next, the Court must review the evidence on those issues, viewing the facts in the light most favorable to the nonmoving party. Id.; Newell v. Oxford Mgmt. 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. See FED. R. CIV. P. 56(c); 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. 1992). Thus, parties should "identify specific evidence in the record, and . . . articulate" precisely how that evidence supports their claims. Forsyth v. Barr, 19 F.3d 1527, 1536 (5th Cir. 1994). Further, 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. See Anderson, 477 U.S. at 249.
To prevail on a motion for summary judgment, the moving party 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, 323 (1986). A defendant moving for summary judgment may submit evidence that negates a material element of the plaintiff's claim or show that there is no evidence to support an essential element of the plaintiff's claim. See Celotex Corp., 477 U.S. at 322-24; Crescent Towing and Salvage Co. v. M/V Anax, 40 F.3d 741, 744 (5th Cir. 1994); Lavespere, 910 F.2d at 178.
To negate a material element of the plaintiff's claim, the defendant must negate an element that would affect the outcome of the action. See Anderson, 477 U.S. at 247. If the defendant moves for summary judgment alleging no evidence to support an essential element of the plaintiff's claim, the defendant need not produce evidence showing the absence of a genuine issue of fact on that essential element. Rather, the defendant need only show that the plaintiff, who bears the burden of proof, has adduced no evidence to support an essential element of his case. See Celotex, 477 U.S. at 325; Teply v. Mobil Oil Corp., 859 F.2d 375, 379 (5th Cir. 1988).
When the moving party has carried its summary-judgment burden, the respondent must go beyond the pleadings and by his own evidence set forth specific facts showing there is a genuine issue for trial. Fed.R.Civ.P. 56(e). This burden is not satisfied by creating some metaphysical doubt as to the material facts, by conclusory allegations, by unsubstantiated assertions, or by only a scintilla of evidence. See Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). If the evidence is merely colorable or is not significantly probative, summary judgment may be granted. See Anderson, 477 U.S. at 249-50.
II. ANALYSIS
Because Overton's claims of retaliation in his complaint are confusing and convoluted, the first issue is which of Overton's claims of retaliation are properly before the Court. Before bringing a Title VII claim in federal court, a party must file a charge of discrimination with the EEOC within 300 days of the adverse employment action. See 42 U.S.C. § 2000e-5(e)(1) (2004); Frank v. Xerox Corp., 347 F.3d 130, 136 (5th Cir. 2003); Huckabay v. Moore, 142 F.3d 233, 238 (5th Cir. 1998) ("In a state that, like Texas, provides a state or local administrative mechanism to address complaints of employment discrimination, a title VII plaintiff must file a charge of discrimination with the EEOC within 300 days after learning of the conduct alleged). In addition, the party must file a suit within ninety days after receiving a right-so-sue letter from the EEOC. See 42 U.S.C. § 2000e-5(b), (e), (f) (2004). "A court may only hear allegations of discrimination that were included within the ` scope' of the EEOC charge." Abrams v. Kelsey-Seybold Med. Group, Inc., 178 F.R.D. 116, 129 (S.D. Tex. 1997); see Sanchaz v. Stand Brands, Inc., 431 F.2d 455, 460-61 (5th Cir. 1970); Anderson v. U.S. Sprint Comm. Co., 1999 WL 604835, at *3 (N.D. Tex. Aug. 10, 1999) (dismissing race-discrimination claim where such claim exceeds the scope of a complaint alleging sex discrimination). However, "there is no need to file a subsequent EEOC charge involving a retaliation claim where the claim `grows out of an administrative charge that is properly before the court,' because the court has ancillary jurisdiction over the claims." Hargett v. Valley Fed. Savings Bank, 60 F.3d 754, 762 (11th Cir. 1995) (quoting Gupta v. East Tex. State Univ., 654 F.2d 411, 414 (5th Cir. (Unit A) Aug. 1981)).
"[A] rule of reason . . . permits the scope of a Title VII suit to extend as far as, but no farther than, the scope of the EEOC investigation which could reasonably grow out of the administrative charge." Terrell v. U.S. Pipe Foundry Co., 644 F.2d 1112, 1123 (5th Cir. 1981).
In this case, Overton filed his initial charge of discrimination on July 14, 1997. He received a right-to-sue letter on March 12, 1998. Because he failed to file a suit within ninety days, all claims of discrimination and retaliation arising out of the 1997 charge are barred as untimely.
Overton filed his most recent charge of discrimination on February 18, 2003, alleging claims of retaliation. He received a right-to-sue letter on February 27 and filed this suit on May 27. Consequently, all claims of retaliation in his complaint that are within the scope of his February 18 charge of discrimination that occurred within 300 days prior to February 18 are timely and may be considered by the Court.
The plaintiff alleges that all the times he was denied a transfer to a detective position from 1997 to 2000 should not be time barred because "they fall under the doctrine of continuing violations which extends the limitations when a pattern of discrimination is demonstrated." (Pl.'s Resp. at 3.) The Court, however, concludes that the doctrine of continuing violations does not apply to this case because Overton has failed to show an "organized scheme leading to and including a present violation, such that it is the cumulative effect of the discriminatory practice, rather than any discrete occurrence, that gives rise to the cause of action." See Huckabay, 142 F.3d at 239 (citations omitted). In other words, the acts Overton complains of as retaliation were the kind of discrete instances that should have put him on notice that his rights had been violated. See id.
With these parameters in mind, the Court concludes that the following claims of retaliation are properly before the Court: (1) the denial of a transfer in late 2002 into a detective position ("denial of transfer"); (2) an internal-affairs investigation that was commenced in November 2002 into Overton's alleged failure to properly document a sexual assault that had been reported to him while he was investigating a case of domestic assault ("November 2002 internal-affairs investigation"); (3) an internal-affairs investigation that resulted in a written reprimanded on September 30, 2002, for writing an inappropriate word in a message from his mobile data computer ("September 2002 internal-affairs investigation").
In August 2002, Sgt. Kraig Fryer was looking for two detectives in the West Division of the police department. Sgt. Fryer sent an email to all of the officers in the police department telling each officer that was interested in the position to submit a letter of interest and a recommendation from his supervisor. Overton sent Fryer an email indicating that he was interested in the position. However, Overton did not send a letter of interest or a recommendation from his supervisor. Consequently, Overton was not interviewed for the position and Sgt. Fryer selected other officers for the position. According to Sgt. Fryer, he did not know that Overton had filed a charge with the EEOC in 1997.
On October 25, 2002, a complaint was filed against Overton by a woman that claimed that she was sexually assaulted and that Overton refused to take a sexual assault report. (Pl.'s Compl., App. D at 4-7.) The complaint was referred by Deputy Chief David Pugh to the internal affairs department and investigated by Lt. Carolyn Allen. (Pl.'s Compl., Ex. E at 1.) As a result of the investigation, Overton was suspended for five days, without pay. (Def.'s App. at 44.) Overton appealed his suspension. Subsequently, on December 2, 2003, Deputy City Manager David Kunkle overturned the suspension and ordered that Overton be paid for the five days that he was suspended. (Def.'s App. at 104.)
Overton received a written reprimand from Assistant Chief Tommy Ingram for sending a message on his mobile data computer that said, "I am here in the shithole of the world." (Pl.'s Compl., Ex. C at 19.) Overton claims that he was treated differently than other officers that committed the same violation. (Def.'s App. at 37-41.)
Title VII makes it unlawful for any employer to retaliate against an employee for bringing a charge under Title VII. See 42 U.S.C.A. § 2000e-3(a) (West 1994). Retaliation claims based upon circumstantial evidence, such as this one, are evaluated under the burdenshifting framework established in McDonnell Douglas Corporation v. Green, 411 U.S. 792, 802-05 (1973). See Evans v. City of Houston, 246 F.3d 344, 352-54 (5th Cir. 2001). Under the McDonnell Douglas framework, the plaintiff must first establish a prima-facie case of retaliation. See Haynes v. Pennzoil Co., 207 F.3d 296, 299 (5th Cir. 2000).
"A plaintiff alleging Title VII retaliation may establish her case . . in one of two ways: she may either present direct evidence of retaliation, . . or she may provide circumstantial evidence creating a rebuttable presumption of retaliation." Fabela v. Socorro Indep. School Dist., 329 F.3d 409, 414-15, (5th Cir. 2003).
To establish a prima-facie case, a plaintiff must show: (1) the plaintiff engaged in activity protected by Title VII; (2) an adverse employment action occurred; and (3) there was a causal connection between the participation in the protected activity and the adverse employment action. See id.; Mattern v. Eastman Kodak Co., 104 F.3d 702, 705 (5th Cir. 1997). If the plaintiff establishes a prima-facie case, then a presumption of discrimination arises and the burden shifts to the defendant to articulate — but not prove — a legitimate nondiscriminatory reason for the adverse employment action. See Evans, 246 F.3d at 350; Haynes, 207 F.3d at 299. If the defendant meets its burden of production, then the presumption of intentional discrimination is rebutted and the burden shifts back to the plaintiff to show that the reason proffered by the defendant is merely a pretext for discrimination. See Evans, 246 F.3d at 350; Haynes, 207 F.3d at 299.
"The `causal link' required in prong three of the prima facie case for retaliation is not as stringent as the `but for' standard." Evans, 246 F.3d at 354.
"It is important to note . . . that although the McDonnell Douglas presumption shifts the burden of production to the defendant, `[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.'" St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 507 (1993) (citing Tex. Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981)).
Plaintiff may show pretext "directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence." Burdine, 450 U.S. at 256-57.
As the Supreme Court acknowledged in Reeves v. Sanderson Plumbing Prods. Inc., 530 U.S. 133 (2000), "a plaintiff's prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false" may be sufficient to infer discrimination. Reeves, 530 U.S. at 148.
Based on the foregoing, the first issue is whether Overton has shown a prima-facie case of retaliation. It is clear that Overton has shown the first element because he has demonstrated that he engaged in protected activity by filing a complaint with the EEOC in 1997. See Long, 88 F.3d 300 at 304 (stating that an "employee has engaged in activity protected by Title VII if she has either (1) `opposed any practice made an unlawful employment practice' by Title VII or (2) `made a charge, testified, assisted, or participated in any manner in an investigation, proceeding or hearing' under Title VII") (quoting 42 U.S.C. § 2000e-3(a)).
Proving the second element requires Overton to demonstrate that he suffered an adverse employment action. "Title VII was designed to address ultimate employment decisions, not to address every decision made by employers that arguably might have some tangential effect upon those ultimate decisions." Dollis v. Rubin, 77 F.3d 777, 781-82 (5th Cir. 1995). "[T]ypical examples of ultimate employment decisions that can support a claim of retaliation include `hiring, granting leave, discharging, promoting, and compensating.'" Hernandez v. Crawford Bldg. Material Co., 321 F.3d 528, 531 (5th Cir. 2003). With respect to Overton's three viable claims for retaliation, the Court concludes that only two can possibly constitute adverse employment decisions: (1) denial of transfer and (2) the November 2002 internal-affairs investigation. The September 2002 internal-affairs investigation that resulted in a written reprimand is not an adverse employment decision because, although evidently an unpleasant experience for Overton, it was not an event that significantly changed his employment status. See Mattern, 104 F.3d at 708; Luckman v. United Parcel Serv., No. Civ. A. 3:00-CV-0739-G, 2001 WL 1029523, at *6 (N.D. Tex. Aug. 30, 2001) (stating that "while placing document reprimands in an employee's file may increase the chance that she might eventually suffer an adverse employment action, it did not rise to the level of an ultimate employment decision"); Smith v. Perry, 3:95-CV-2102-AH, 1997 WL 160293, at *5 (N.D. Tex. Mar. 27, 1997) (stating that "a written reprimand does not constitute an actionable "adverse employment decision").
The Court notes that there are subsequent cases decided by the United States Court of Appeals for the Fifth Circuit that have questioned whether the ultimate-employment-decision doctrine employed in Dollis and Mattern, supra, remains viable in light of the United States Supreme Court's decisions in Burlington Industries, 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). In these cases the Supreme Court set out a relatively broad definition of a "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." Burlington Indus., 524 U.S. at 761; see Faragher, 524 U.S. at 790 (stating that tangible employment actions include "hiring, firing, promotion, compensation, and work assignment"). However, this Court need not decide whether a "tangible employment action" is identical to the definition of an "ultimate employment action" in Dollis and Mattern because this Court will consider any viable acts that met the less-stringent definition of a tangible employment action as defined in Burlington Industries and Faragher as an adverse employment action.
Ultimate employment decisions generally include: demotions, denials of pay increases, discontinuation of an employee's stipend, denial of request for paid leave, denial of request to extend unpaid leave, termination, failure to promote, denial of pay raise, refusal to consider employee for another position after closing employee's department, and constructive demotion. See Hernandez, 321 F.3d at 532 n. 2. Ultimate employment decisions do not generally include: changing locks, restructuring office procedures, clarifying job duties, reprimands, removal of employee's name from letterhead, ostracism by coworkers, loss of some job duties, assignment to less desirable shift, formal discipline, denial of transfer request to an identical position at a different job site, rude treatment by employer, monitoring of employee's conversations, threats of potential dismissal, or low evaluations that could lead to missed pay increases. Id.
While an internal-affairs investigation resulting in a suspension without pay that was eventually overturned is not normally viewed as adverse employment decision, the Court, for purposes of this summary judgment motion, will assume that Overton's internal-affairs investigation was an adverse employment decision because Overton claims that he lost additional pay because he was not allowed to work at his off-duty job during the five-day suspension. Cf. Breaux v. City of Garland, 205 F.3d 150, 158 (5th Cir. 2000) (finding that police officer who was placed on paid administrative leave for several months and returned to his pre-leave position did not suffer adverse employment action as to his retaliation claim); Benningfield v. City of Houston, 157 F.3d 369, 378 (stating that plaintiff did not suffer adverse employment action when promotion was delayed two years in response to her exercising her free speech rights because she eventually received the promotion with retroactive pay and seniority).
As to the denial of transfer and the November 2002 internal-affairs investigation, the third and final issue regarding Overton's establishment of a prima-facie case is whether there is any causal connection between these adverse employment decisions and Overton's filing of his original EEOC complaint in 1997. "In order to establish the causal link between the protected conduct and the illegal employment action as required by the prima facie case, the evidence must show that the [adverse employment action] was based in part on knowledge of the employee's protected activity." Sherrod v. Am. Airlines, Inc., 132 F.3d 1112, 1122 (5th Cir. 1998); see Medina v. Ramsey Steel Co., 238 F.3d 674, 684 (5th Cir. 2001). The causal connection can be inferred from circumstantial evidence, such as showing the employer had knowledge that the plaintiff engaged in a protected activity and showing the temporal proximity of that activity to the alleged retaliatory action. See Evans, 246 F.3d at 354. "`[A] plaintiff need not prove that his protected activity was the sole factor motivating the employer's challenged decision in order to establish the `causal link' element of a prima facie case." Evans, 246 F.3d at 354 (quoting Long, 88 F.3d at 305 n. 4).
With respect to the denial of transfer, the City of Arlington presents evidence that Overton was not selected for the detective position in August 2002 because Overton failed to submit a letter of interest and a recommendation from his supervisor, which was required by Sgt. Fryer to be considered for the position. In addition, the evidence indicates that Sgt. Fryer, the person who made the selection decision for the detective position, did not know that Overton had filed a charge with the EEOC in 1997. Overton, on the other hand, has not submitted any competent summary-judgment evidence that refutes the City of Arlington's evidence or shows any links between Sgt. Fryer's decision not to select him for the detective position and Overton's filing of his charge with the EEOC in 1997. Consequently, the City of Arlington is entitled to summary judgment with respect to this claim.
As to the November 2002 internal-affairs investigation, Overton offers the following evidence to show causation: (1) alleged comments made by Deputy Chief Pugh in 1997, subsequent to his filing the EEOC complaint, that "not only is Mike Overton not coming into narcotics, he's not going anywhere in the department" (Pl.'s Resp. at 4); (2) a study of the Arlington Police Department conducted by the Bedford Consulting Group in 2002 that indicates there is a "pervasive fear of retaliation within the department" (Pl.'s App. at 38); (3) the fact that Deputy Chief Pugh directed Sgt. Waldron to initiate the internal-affairs investigation and this was the only time in Sgt. Waldron's career that he was ordered to perform such a task; (4) allegations by Overton that the investigation was performed maliciously and was brought with "reckless indifference to [Overton's] federally protected rights" (Pl.'s Resp. at 5).
After reviewing this evidence, the Court concludes that Overton has failed to bring forth any non-conclusory, competent summary judgment evidence of causation. There is no evidence linking the November 2002 internal-affairs investigation to Overton's filing his charge of discrimination with the EEOC in 1997, approximately four years earlier. Instead, the evidence indicates that the November 2002 internal-affairs investigation was initiated because the City of Arlington police department had received a complaint from a citizen over Overton's handling of a domestic-assault call. Furthermore, there is no evidence that the supervisors that recommended and implemented the five-day suspension without pay following the November 2002 internal-affairs investigation did so because Overton filed a charge of discrimination in 1997. Because there is no evidence of causation, the City of Arlington is entitled to summary judgment on this claim as well.
The lapse of approximately four years between Overton's filing of his charge and the internal-affairs investigation militates against finding a causal connection between Overton's filing of his charge of discrimination in 1997 and the internal-affairs investigation in 2002. See Mato v. Baldauf, 267 F.3d 444, 453 (5th Cir. 2001) (stating that a one-and-a-half-year lapse between sexual-harassment complaint and the plaintiff's termination did not support an inference of retaliation); Grizzle v. Travelers Health Network, Inc., 14 F.3d 261, 268 (5th Cir. 1994) (noting that a ten-month lapse between plaintiff's complaint and discharge suggested "that a retaliatory motive was highly unlikely"); Lowen v. Deloitte Touche (ISC) L.L.C., No. 3:97-CV-1295L, 1999 WL 102807, at *6 (N.D. Tex. Feb. 19, 1999) (stating that a gap of twelve months between plaintiff's complaint and alleged retaliatory action weighed against any inference of retaliation).
IV. CONCLUSION
Based on the foregoing, it is ORDERED that the City of Arlington's Motion for Summary Judgment [doc. # 8-1] is GRANTED.