Opinion
Civil Action No. SA-00-CA-0229 OG
February 14, 2001
MEMORANDUM AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
TO: Honorable Orlando L. Garcia, United States District Judge.
I. Introduction
Numerous motions have been filed in this case. This Memorandum and Recommendation addresses the pending dispositive motions filed to date: (a) defendants' partial motion to dismiss claims brought pursuant to 42 U.S.C. § 1983 (docket entry 44); (b) defendants' partial motion to dismiss claims brought pursuant to 42 U.S.C. § 1982 (docket entry 43) and the motion to dismiss said claims filed by the defendants identified in plaintiffs' amended complaint, J.M. Karen Lindsey (docket entry 88); (c) defendants' motion to dismiss claims brought pursuant to 42 U.S.C. § 1985 (2) (docket entry 56), as well as the Lindseys' motion to dismiss or for judgment on the pleadings on said claims (docket entry 89); (d) defendants' motion for judgment on the pleadings and/or for summary judgment on plaintiffs' claims under 42 U.S.C. § 1983 1981 on the basis of qualified immunity (docket entry 92); and (e) defendants' motion for judgment on the pleadings and/or for summary judgment with respect to plaintiffs' Title VII claims (docket entry 95). These motions, if granted, would dispose of plaintiffs' case in its entirety. To date, plaintiffs have only responded to defendants' motion for judgment on the pleadings and/or for summary judgment based on qualified immunity (docket entry 93). No response has been filed with respect to defendants' other six dispositive motions.
Originally, defendants filed one pleading (docket entry 26) containing multiple motions. By Order entered June 19, 2000 (docket entry 40), I struck said pleading and advised defendants that they may refile their motions presented in docket entry 26 in separate motions. Docket entry 40, at 8. Defendants have done so and some of the motions originally submitted in docket entry 26 have been refiled separately and are the subject of this Memorandum and Recommendation. Before my Order was entered, however, defendants filed a motion for leave to file amended versions of the motions contained in docket entry 26. Because docket entry 26 was struck from the record on June 19, 2000, defendants' motion for leave to file (docket entry 27) is DENIED AS MOOT.
The court notes that plaintiffs filed a request for an enlargement of time to file their response to defendants' motion by December 4, 2000. Because plaintiffs's response, filed December 4, 2000, was timely, there was no need to file a motion seeking an extension of time. Accordingly, plaintiffs' motion (docket entry 86) is DENIED AS MOOT.
It is important to note that this Memorandum and Recomendation will solely address the matter in controversy arising from the relevant factual allegations beginning on February 8, 1999 to the filing of this suit. Plaintiffs have dedicated an extensive amount of prose in their 96-page first amended complaint, to their historical notions of what they perceived as oppression, racism, and even genocide, against members affiliated with the "Raza" political movement (or "Autochthonous People" as plaintiffs also identified themselves) by the "White Establishment." In that regard, they state that this case presents an "issue of first impression" and further seek redress for over five hundred years of oppression. This court, however, is not the proper forum to address plaintiffs' historical claims of racism and oppression. That said, I will proceed to analyze the viability of plaintiffs' causes of action under the applicable legal standards.
Docket entry 52. According to plaintiffs, the "White Establishment" not only includes defendants, but also this federal district court. See also docket entry 93.
Docket entry 52, at 26 49.
Consequently, the court refuses to take judicial notice, as requested by plaintiffs, of pleaded allegations, which in essence, constitute plaintiffs' one-sided views and personal opinions of historical events. For example, plaintiffs request judicial notice of statements such as: "Although individual Indians who adopted White Ways have always been permitted to come into the White Forts or Towns, the Indian Tribes and/or Nations have never been incorporated fully and completely into the white Society as equals of whites;" "Wars, such as the `French and Indian Wars,' invoking `Indian' people on their land, as fought in the New World at the end of the 17th century and early 18th century, were fought by such as the European nations of France and Britain motivated at least partly by their respective interest in establishing hegemony over portions of what was later to become the United States." Docket entry 53, at 10-13, ¶¶ 17 30. Statements such as these are not only irrelevant to the case at hand, but they also fail to meet the evidentiary requirements for the taking of judicial notice. See FED. R. EVID. 201 and FED. R. Civ. P. 44. For these reasons, plaintiffs' motion for the taking of judicial notice (docket entry 53) is DENIED .
I have jurisdiction to enter this Memorandum and Recommendation under 28 U.S.C. § 636 (b) and the District Court's Order referring all pretrial matters in this proceeding to me for disposition by order, or to aid in their disposition by recommendation where my authority as a Magistrate Judge is statutorily constrained.
Docket entry 10.
II. Jurisdiction
Plaintiffs predicate jurisdiction of this court on 28 U.S.C. § 1331 1343, with respect to their causes of action pleaded under 42 U.S.C. § 1981, 1982, 1983, 1985(2) 2000e (docket entry 52, at 5, and 90-94). Plaintiffs have failed to cite any statutory authority (nor have I found any) for their position that this court has jurisdiction of their pleaded first cause of action asserting an International Law violation (docket entry 52, at 5, and 88-90).III. Factual Background
The relevant facts of this employment dispute brought against defendant, the Texas Department of Human Services ("TDHS"), and the individually named defendants, are straight forward, and for the most part, undisputed.
This lawsuit stems from the placement, and later unauthorized removal, of nineteen icons on a workplace computer at one of TDHS' offices, in Pearsall, Texas. Based on the titles given to the icons, TDHS determined that they were inappropriate, sexual in nature, non-work related, and in violation of various agency rules and policies. The icon titles at issue were: "Rudy's Naughty Box," "The XXX Files," "Old Girlfriend's Phone #," "Desired Girlfriend's Phone," "El Mero Mero 6.0," "Rudy's Personal Love Fantasy," "Tips on How to Pick-up Girls," "John Holmes' Phone #," "Playmate of the Year," "Favorite 900 Phone #'S," "Coming Out of the Closet," "Super Bowl Pot," "Personal Psychologist Tele #," "101 Sex Questions," "Soap Opera Schedule," "Bank Note Due Dates," "My Gay Life," "AIDS Support Group," and "Boyfriend Telephone #."
Docket entry 52, at 16-19.
Docket entry 92, Affidavits of Dolores Torres (Tab. 2); Cynthia Hahn (Tab. 3); and Philip V. Jones (Tab. 5).
Shortly after the icons were discovered, TDHS had enough information to begin an internal investigation into plaintiffs' involvement in the incident. At the time the incident occurred, on February 8-9, 1999, plaintiff Carlos Segura, was a Supervisor for the Community Care-Aged and Disabled Program (CCAD), at the TDHS Pearsall office. Plaintiff, Juan Garcia, was a CCAD Worker III, who officed, in Cotulla, Texas, but who on the date in question was performing diagnostic computer tests at the Pearsall office. According to the information obtained during the internal investigation, including statements made by Garcia and Segura, Genevieve Manley, the CCAD Program Manager, recommended that Segura be demoted into the non-supervisory position of Worker III in the Community-Based Alternatives Program ("CBA"), and that Garcia be suspended, without pay, for three days. Manley's recommendation to demote Segura was in substantial part due to Garcia's statement to the investigator directly implicating Segura in the installation of the icons. Also, in making her recommendation, Manley considered Segura's own statements to the investigator concerning his actions in removing the icons after knowing they had been discovered and would, in all likelihood, be the subject of an official internal investigation.
Docket entry 92, Affidavit of Genevieve Manley (Tab. 1).
Docket entry 93, Segura's Affidavit, at 1.
Docket entry 92, Affidavit of Genevieve Manley (Tab. 1); and docket entry 52, at 72.
Id .
Id .
Objecting to Manley's recommendation to demote him, Segura invoked the agency's administrative grievance procedures and challenged the recommendation, through the assistance of counsel, at a management conference. After TDHS affirmed the recommendation to demote Segura, he proceeded to the next step of the administrative grievance procedure by appealing TDHS' decision at a hearing before an administrative law judge ("ALJ"). At the hearing, Garcia, after being placed under oath, recanted his earlier statement made part of TDHS' internal investigation, by absolving Segura from any involvement in the placement of the icons. Significantly, Garcia also testified at the hearing that he had not been coerced by TDHS in making his earlier statement implicating Segura in the incident, and that he had taken no steps to correct his written statement prior to the hearing. Based on Garcia's hearing testimony, the ALJ found that TDHS' decision to demote Segura was erroneous and should be reversed. Shortly after the hearing, TDHS reinstated Segura to the same pay he earned as a supervisor prior to his demotion.
Docket entry 92, at 8 Affidavit of Deborah Billa(Tab. 4), Attachment A; and docket entry 93, Segura's Affidavit.
Id .
Docket entry 92, at 8 Affidavits of Billa (Tab. 4), Manley (Tab. 1), Jones (Tab. 5).
Id .
Docket entry 92, at 9; and docket entry 93, Segura's Affidavit.
Docket entry 92, at 9.
According to the summary judgment evidence submitted by defendants, it appears that TDHS has attempted, on at least two occasions, to enter into settlement agreements with Segura. These settlement agreements would have provided Segura with back pay as compensation for the higher income he would have earned as a supervisor as compared to the salary he earned for six months in the lower non-supervisory position. Also, according to defendants, the settlement offers would have restored Segura to a supervisory position. Segura has, nonetheless, rejected both settlement offers and is currently employed by TDHS as a CBA Worker IV, although he is paid at the same supervisory level he held prior to his demotion.
Id . Affidavits of Billa (Tab. 4) Manley (Tab. 1).
Id .
Id .
With respect to Garcia, TDHS first suspended him for three days without pay for his involvement in the placement of the icons. TDHS subsequently terminated his employment after Garcia testified under oath at Segura's administrative hearing that he had provided a false written statement to the agency investigator, which directly implicated Segura in the incident causing his demotion. There is no evidence nor pleaded factual assertions that Garcia invoked TDHS' administrative grievance procedures to challenge his termination from employment. Within two weeks of Garcia's effective date of termination from employment, plaintiffs filed the instant lawsuit. The Attorney General of Texas answered the civil complaint on behalf of all named defendants. Significantly, with respect to plaintiffs' Title VII claims, there is no evidence that plaintiffs exhausted their administrative remedies by filing a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") or that they received their right to sue letter from the EEOC prior to filing this lawsuit.
Id . at 9-10 Affidavits of Manley (Tab. 1), Billa (Tab. 4), and Michael Mason (Tab. 7).
To the extent that Garcia has filed a motion (docket entry 53) requesting that he be deemed as having exhausted the administrative remedies available to him prior to the filing of this suit, that request is hereby DENIED .
Docket entry 1.
Docket entry 6.
At the very early stages of the lawsuit, defendants asserted the defense of qualified immunity. As a result, I granted defendants' motion to stay discovery pending resolution of the issue. Simultaneous to the stay of discovery, and due to plaintiffs' rambling and conclusory legal and factual allegations contained in his original complaint, I allowed plaintiffs to file an amended complaint with the factual detail required to overcome defendants' qualified immunity defense. As discussed more fully below, their amended complaint, even though longer in length than the original version. does not provide the factual specificity required to support their causes of action. After plaintiffs filed their amended complaint, defendants filed the dispositive motions which are the subject of this Memorandum and Recommendation.
Docket entry 40.
See Elliott v. Perez, 751 F.2d 1472, 1473 (5th Cir. 1985) ("To survive a motion for summary judgment against a likely defense of qualified immunity, the plaintiff's complaint [must] state with factual detail and particularity the basis for the claim which necessarily includes why the defendant-official cannot successfully maintain the defense of qualified immunity."). Also see case authority cited in docket entry 40.
IV. Issues Presented
(1) Whether TDHS and the individually named defendants, sued in their official capacities, are entitled to Eleventh Amendment immunity with respect to plaintiffs' claims pursuant to 42 U.S.C. § 1981 1983?
(2) Whether plaintiffs' claim pursuant to 42 U.S.C. § 1982 should be dismissed for failure to state a claim upon which relief may be granted?
(3) Whether plaintiffs' claim pursuant to 42 U.S.C. § 1985 (2) should be dismissed for failure to state a claim upon which relief may be granted?
(4) Whether plaintiffs have established a prima facie case of intentional discrimination under Title VII and 42 U.S.C. § 1981?
(5) Whether plaintiffs have established a viable cause of action under 42 U.S.C. § 1983 against the named defendants, sued in their individual capacities?
V. Applicable Standards
A. Dismissal StandardDefendants have filed motions to dismiss under FED.R. Civ. P. 12(b)(1), 12(b)(6) 12(c). Rule 12 (b)(1) authorizes the dismissal of a case for lack of subject-matter jurisdiction when the district court lacks the statutory and constitutional power to adjudicate the case. A district court may dismiss a case for lack of subject-matter jurisdiction on any one of three different bases: (1) the complaint alone; (2) the complaint supplemented by undisputed facts in the record; or (3) the complaint supplement by undisputed facts plus the court's resolution of disputed facts.
Docket entries 43-44, 56, 88-89 92 (in part).
See Home Builders Association of Mississipul. Inc., v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998).
See Clark v. Tarrant County, 798 F.2d 736, 741 (5th Cir. 1986) (citing Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir.), cert. denied, 454 U.S. 897 (1981)).
Rule 12(c), in turn, enables a party to move for judgment on the pleadings "after the pleadings are closed but within such time as not to delay the trial." The movant, must establish, that on the basis of the pleadings, there is no issue of material fact to be resolved and that the movant is entitled to judgment as a matter of law. Motions brought under Rule 12(c) should be read in conjunction with the standards outlined for motions brought under Rule 12(b), such as 12(b)(1) 12(b)(6).
Id . See also 5A CHARLES ALAN WRIGHT ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1369, 2d ed. 1987); and Frey v. Bank One, 91 F.3d 45, 46 (7th Cir. 1996) ("We review a motion pursuant to [Rule] 12 (c) under the same standard as a motion to dismiss under [Rule] 12(b). [T]he motion should not be granted unless it appears beyond doubt that the plaintiff cannot prove any facts that would support his claim for relief.").
Pursuant to Rule 12(b)(6), a plaintiff's claim should be dismissed for failure to state a claim upon which relief may be granted when, viewing the allegations in the plaintiff's complaint in the light most favorable to him and drawing all reasonable inferences in his favor, it appears certain that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Rule 12(b)(6) allows a court to eliminate actions that are fatally flawed in their legal premises and destined to fail, thus sparing the litigants the burdens of unnecessary pretrial and trial activity. Conclusory allegations or legal conclusions masquerading as factual allegations will not suffice to prevent a motion to dismiss pursuant to Rule 12(b)(6). In ruling on a motion to dismiss, a court should consider only those facts stated on the face of the complaint or incorporated into the complaint by reference, and matters of which judicial notice may be taken. If a complaint omits facts concerning pivotal elements of a plaintiff's claim, a court is justified in assuming the non-existence of those facts. B. Summary Judgment Standard
See Kaiser v. Aluminum Chem, Sales, Inc. v. Avondale Shipyard, Inc., 677 F.2d 1045, 1050 (5th Cir. 1982), cert. denied, 459 U.S. 1105 (1983); and Adolph v. Federal Emergency Management Agency, 854 F.2d 732, 735 (5th Cir. 1988).
See Spivey, Jr., v. Robertson, 197 F.3d 772, 774 (5th Cir. 1999).
See Fernand-Montes v. Allied Pilots Assoc., 987 F.2d 278 (5th Cir. 1993).
See Lovelace v. Software Spectrum, Inc., 78 F.3d 1015, 1017 (5th Cir. 1996) and McNamara v. Bre-X Minerals Ltd., 57 F. Supp.2d 396, 417 n. 12 (E.D. Tex. 1999).
See Ledesma v. Dillard Dept. Stores, Inc., 818 F. Supp. 983 (N.D. Tex. 1993).
The named defendants have moved for summary judgment with respect to plaintiffs' causes of action under 42 U.S.C. § 1981 1983 brought against them in their individual capacities, as well as with respect to plaintiffs' Title VII claims. The applicable standard in deciding a motion for summary judgment is set forth in FED. R. Civ. P. 56, which provides in pertinent part as follows:
Docket entries 92 (in part) 95.
The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.
FED.R.Civ.P. 56(C); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
FED.R.Civ.P. 56(C); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
Mere allegations of a factual dispute between the parties will not defeat an otherwise proper motion for summary judgment. Rule 56 requires that there be no genuine issue of material fact. In an employment discrimination case such as this one, the court focuses on whether a genuine issue of material fact exists as to whether the defendant intentionally discriminated against the plaintiff. A fact is material if it might affect the outcome of the lawsuit under the governing law. A dispute about a material fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Therefore, summary judgment is proper if, under governing laws, there is only one reasonable conclusion as to the verdict; if reasonable finders of fact could resolve a factual issue in favor of either party, summary judgment should not be granted.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986).
See La Pierre v. Benson Nissan, Inc., 86 F.3d 444, 447 (5th Cir. 1996) (citing Armstrong v. City of Dallas, 997 F.2d 62, 65-66 (5th Cir. 1993)).
Anderson, 477 U.S. at 248; Thomas v. LTV Corp., 39 F.3d 611, 616 (5th Cir. 1994).
Id.; Wise v E.I. DuPont De Nemours Co., 58 F.3d 193, 195 (5th Cir. 1995).
Anderson 477 U.S. at 249.
The movant on a summary judgment motion bears the initial burden of informing the court of the basis for its motion and identifying those portions of the record which it alleges demonstrate the absence of a genuine issue of material fact. To satisfy this burden, the movant must either submit evidentiary documents that negate the existence of some material element of the nonmoving party's claim or defense, or if the crucial issue is one for which the nonmoving party will bear the burden of proof at trial, merely point out that the evidentiary documents in the record contain insufficient proof concerning an essential element of the nonmoving party's claim or defense. Regardless of whether the movant accompanies its summary judgment motion with affidavits or other evidentiary materials, the motion must be granted if the evidence before the court demonstrates that the standard for entry of summary judgment, as set forth in Rule 56(c), is satisfied. Once the movant has carried that burden, the burden then shifts to the party opposing the motion to present affirmative evidence in order to defeat a properly supported motion for summary judgment.
Celotex Corp., 477 U.S. at 323.
Edwards v. Aguillard, 482 U.S. 578, 595 n. 16 (1987); and Celotex Corp., 477 U.S. at 325.
Id .
Anderson, 477 U.S. at 257.
The nonmoving party cannot discharge this burden by referring to the mere allegations or denials of the nonmoving party's pleadings. Rather, the nonmovant must, either by submitting opposing evidentiary documents or by referring to evidentiary documents already in the record, set out specific facts showing the existence of a genuine issue for trial. The court will look at the record in the light most favorable to the nonmovant drawing all inferences most favorable to that party. Nevertheless, "conclusory allegations, speculation, and unsubstantiated assertions are inadequate to satisfy the nonmovant's burden." Summary judgment is mandated if the nonmovant fails to make a showing sufficient to establish the existence of an element essential to her case on which she bears the burden of proof at trial.
FED R.Civ.P. 56(e); Anderson, 477 U.S. at 250; State of Texas v. Thompson, 70 F.3d 390, 393 (5th Cir. 1995).
Celotex Corp., 477 U.S. at 324; Fields v. City of South Houston, Texas, 922 F.2d 1183, 1187 (5th Cir. 1991); Neff v. American Dairy Queen Corp., 58 F.3d 1063, 1065 (5th Cir. 1995), cert. denied, 516 U.S. 1045 (1996).
Hibernia Nat'l Bank v. Carner, 997 F.2d 94, 97 (5th Cir. 1993). See also Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (holding that a nonmovant cannot discharge her burden with doubt as to the material facts, by conclusory allegations, unsubstantiated assertions, or by only a scintilla of evidence).
See Douglass v. United Services Auto. Ass'n, 79 F.3d 1415, 1429 (5th Cir. 1996) (citing Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir.), cert. denied, 513 U.S. 871 (1994)).
Celotex Corp., 477 U.S. at 322 ("In such situation, there can be `no genuine issue as to any material fact,' since a complete failure of the proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial."). Id . at 323.
Accordingly, summary judgment motions permit the court to resolve lawsuits without the necessity of trials if there is no genuine dispute as to any material facts and the moving party is entitled to judgment as a matter of law.
See Fields, 922 F.2d at 1187.
VI. Analysis
A. Plaintiffs' claims under 42 U.S.C. § 1981 1983 against TDHS and the individually named defendants, sued in their official capacities, fail as a matter of lawAccording to their second and fourth causes of action as pleaded in the amended complaint, plaintiffs purportedly bring claims under 42 U.S.C. § 1981 1983, against TDHS and the individually named defendants, sued in their official capacities. Plaintiffs make various conclusory allegations to the effect that they were deprived of due process of law, equal protection under the law, the rights secured by the privileges and immunities clause of the Fourteenth Amendment, and, curiously, "for the security of persons and property as is enjoyed by white citizens," and "for the tortuous interference with fundamental rights and privileges so as to deny self-determination and normal human development." Plaintiffs seek damages and injunctive relief. Although the first amended complaint does not state if plaintiffs are bringing their §§ 1981 1983 claims against some or all of the named defendants, all defendants have nonetheless moved for a 12(b)(1) or 12 (b)(6) dismissal on the basis of Eleventh Amendment immunity. As discussed more fully below, defendants' motions to dismiss plaintiffs' claims on the basis of Eleventh Amendment (or sovereign) immunity are meritorious and should be granted.
Section 1981 of the Civil Rights Act prohibits discrimination on the basis of citizenship in the making of contracts. Section 1983, in turn, does not in itself provide a source of substantive rights, but merely provides a method for vindicating federal rights conferred elsewhere. To recover under § 1983, a plaintiff must prove that the alleged constitutional or statutory deprivation was intentional or due to deliberate indifference, not a result of mere negligence. 42 U.S.C. § 1983.
Docket entry 52, at 90-93.
Id .
Docket entries 92 44. As the individual defendants have pleaded and filed motions on the basis of immunity, J.M Karen Lindsey, the recently added defendants, have also pleaded immunity from suit in their official capacities. Docket entry 76.
The Eleventh Amendment generally divests federal courts of jurisdiction to entertain citizen suits directed against states. "This jurisdictional bar applies regardless of the nature of the relief sought." The Amendment "is not evaded by suing state employees in their official capacity, since such an indirect pleading device remains in essence a claim upon the state treasury." The state, may voluntarily waive Eleventh Amendment protection, if unequivocally expressed, or Congress may forcibly pierce state sovereign immunity to the extent allowed, for example, by Section 5 of the Fourteenth Amendment. However, it remains a settled constitutional principle that the Eleventh Amendment divests the federal judiciary of jurisdiction to hear citizen suits designed, ultimately, to secure monetary recovery from nonconsenting states. It is irrelevant for purposes of Eleventh Amendment immunity that the action is framed against the state directly, or indirectly against subordinate agencies, or officeholders operating in their official capacities.
The Eleventh Amendment of the United States Constitution specifically provides:
The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.
See Stem v. Ahearn, 908 F.2d 1, 2 (5th Cir. 1990) (citations omitted) (where court, in reversing partial summary judgment in favor of agency and county, held that TDHS employees were immune from liability in their official and personal capacities), cert. denied, 498 U.S. 1069 (1991).
Pennhurst State School Hosp. v. Halderman, 465 U.S. 89, 100 (1984).
Id . at 3 (citing Pennhurst, 465 U.S. at 101-02).
See Will v. Michigan Dept. of State Police, 491 U.S. 58 (1989).
Significantly, with respect to plaintiffs' section 1981 1983 claims, it is apparent that Congress did not intend to abrogate a state's Eleventh Amendment immunity under these statutes. See Will v. Michigan Dept. of State Police, where the United States Supreme Court specifically held that states and state officials sued in their official capacities are not deemed "persons" subject to suit within the meaning of § 1983; and Chacko v. Texas A M University, where the district court held that the Eleventh Amendment barred plaintiffs §§ 1981 1983 claims for monetary damages against the individual defendants in their official capacities.
960 F. Supp. 1180, 1199 (S.D. Tex. 1997), aff'd, 149 F.3d 1175 (1998).
In this case, it is undisputed that at all relevant times, the individually named defendants, sued in their official capacities, were employees of defendant TDHS. It is also undisputed that defendant TDHS is an organ of state goverment. Consequently, plaintiffs' claims for damages and injunctive (including retrospective) relief under §§ 1981 1983 against TDHS and the individually named defendants, sued in their official capacities, are barred by the Eleventh Amendment, and as such, should be dismissed for lack of subject matter jurisdiction. B. Plaintiffs have failed to state a claim upon which relief may be granted under 42 U.S.C. § 1982
Docket entry 52, at 7-9.
See TEX. HUM. RES. CODE ANN. chs. 11 21 (Vernon 2001) (TDHS created by legislature).
See Cronen v. Tex. Dept. of Human Services, 977 F.2d 934, 938 (5th Cir. 1992) (affirming Rule 12(b)(6) dismissal of plaintiff's claims against Texas and TDHS on the basis of Eleventh Amendment immunity and further holding that the source of damages (whether monetary or injunctive) is irrelevant for Eleventh Amendment purposes when the suit is against state itself or state agency); and Sessions v. Rusk State Hospital, 648 F.2d 1066, 1069 (5th Cir. 1981) (affirming judgment in favor of defendant, specifically finding that an award by a federal court of retrospective relief, is prohibited by the Eleventh Amendment even though the suit names a state official as the defendant). See also Edelman v. Jordan, 415 U.S. 651 (1974).
In support of their § 1982 claim, plaintiffs' amended complaint states the following:
This cause of action is that provided for directly under the US Constitution and under such as the terms of 42 U.S.C. § 1982, as herein elsewhere set forth, because the Plaintiffs, and the Plaintiffs' Ancestors, have not had and do not have the same right in the State of Texas, as is enjoyed by white citizens, thereof, to inherit, purchase, lease, sell, hold, and convey real and personal property.
Docket entry 52, at 91-92.
Docket entry 52, at 91-92.
Although plaintiffs for the most part correctly paraphrase the language of § 1982, nowhere in their amended complaint does it specify what real and personal property they rely on in asserting a § 1982 violation. Despite plaintiffs' insistence that this case brings far more serious violations against the Autochthonous People by the `White Hegemony' from the time the Republic of Texas was founded, their amended complaint can only be reasonably construed to allege no more than an employment discrimination suit. Defendants have sought dismissal of this claim arguing that § 1982 was enacted to: eliminate racial discrimination in the sale or lease of real property; grant access to recreational facilities irrespective of the individual's race; and to prohibit the destruction of real property because of racial hatred. Specifically, according to defendants, § 1982 does not apply to employment discrimination claims. According to my reading of plaintiffs' amended complaint, my review of the applicable case authority and my analysis of § 1982, I agree with defendants' position.
Docket entry 43, at 2-3; and docket entry 88, at 3.
Id .
To state a claim under § 1982, a party must allege an impairment of the type of property interest protected by the statutory language. Since § 1982 only protects real and personal property interests, numerous courts have held that § 1982 does not apply to employment discrimination claims. The basis for these holdings is that employment rights are not `property' within the meaning of § 1982. "Regardless of whether plaintiff had a property tight in his continued employment, that tight is not the same as a real or personal property right within the meaning of § 1982." While employment discrimination claims are not expressly excluded from § 1982, the wording of that provision clearly limits its application to transactions in real and personal property, such as leasing, selling and conveying such property. Alleged discrimination in the employment relationship does not implicate any of the concerns of § 1982. For these reasons, defendants' motions to dismiss plaintiffs' § 1982 claim (docket entries 43 88) should be granted as plaintiffs' first amended complaint has failed to state a viable claim for relief under that statute.
See City of Memphis v. Greene, 451 U.S. 100, 123-24 (1981).
See Krieger v. Republic Van Lines of Southwest, Inc., 435 F. Supp. 335, 337 (S.D. Tex. 1977) ("Section 1982 is limited on its face to discrimination with respect to property rights; and is therefore, not available to a plaintiff alleging sex discrimination."); Schirmer v. Eastman Kodak Co., No. Civ. A. 86-3533, 1987 WL 9280, *4 (E.D.Pa. Apr. 9, 1987) (dismissal of § 1982 claim, finding that employment rights are not "property" for purposes of the statute), aff'd, 869 F.2d 591 (3d Cir. 1989); Rick Nolan's Auto Body Shop, Inc., v. Allstate Insurance Co., 711 F. Supp. 475, 476-77 (ND. Ill. 1989) (granting dismissal of § 1982 claim, finding that employment rights are not "property" within the meaning of statute); Jurado v. Eleven-Fifty Corp., 630 F. Supp. 569, 572 (CD. Cal. 1985) (same), aff'd, 813 F.2d 1406 (9th Cir. 1987); Abel v. Bonfanti, 625 F. Supp. 263, 269 (S.D.N.Y. 1985) (same); Evans v. Meadow Steel Products, Inc., 572 F. Supp. 250, 253 (ND. Ga. 1983) (granting dismissal of plaintiff's § 1982 claim); Roman v. Niagara Frontier Transit Metro System, Inc., et al., 30 Fair Empl. Prac. Cas. (BNA) 1345 (W.D.N.Y. 1983) (granting dismissal of§ 1982 claim on the basis that employment discrimination is not within the scope of statute); Tate v. Hills-McCanna Co., 42 Fair. Empl. Prac. Cas. (BNA) 138 (ND. Ill. 1982) (Rule 12(b)(6) dismissal granted, finding no "right to labor" under § 1982); and Johnson v. Duval County Teachers Credit Union, 507 F. Supp. 307, 310 (M.D. Fla. 1980) (granting dismissal of § 1982 claim).
Tate 42 Fair Empl. Parc. Cas. (BNA) at 138.
Id .
C. Plaintiffs have failed to state a claim upon which relief may be granted under 42 U.S.C. § 1985 (2)
Although, again, it is unclear whether plaintiffs are alleging a § 1985(2) conspiracy against some or all of the named defendants, all defendants have nevertheless moved for a Rule 12(b)(6) dismissal. Defendants argue that plaintiffs' fifth cause of action under 42 U.S.C. § 1985 (2) fails as a matter of law because plaintiffs, after having been given an opportunity to amend their complaint, have failed to plead sufficient (if any) factual allegations establishing either a nexus between the alleged conspiracy and a court proceeding (whether federal or state), or that a racial or class-based animosity against them motivated defendants' actions.
Docket entries 56 89.
Docket entries 56, at 2-12; and 89, at 3-13.
According to paragraph 91 of the Amended Complaint, plaintiffs allege:
This cause of action is that provided for directly under the U.S. Constitution and under such as the terms of 42 U.S.C. § 1985, (2) because the Defendants, as herein elsewhere set forth, with others here named and yet others not here named, have conspired to deter, by force, intimidation, or threat, the Plaintiffs from testifying in this court of the United States from attending such court, or from testifying to any matter here now pending, freely, fully, and truthfully, or to injure such Plaintiffs in his [sic] person or property on account of Plaintiffs having attended or testified, or to influence the verdict, and for conspiring for the purpose of impeding, hindering, obstructing, or defeating in any manner, the due course of justice in the State of Texas, with intent to deny the Plaintiffs the equal protection of the laws, or to injure the Plaintiffs or their property for lawfully enforcing, or attempting to enforce, the right of a person, or class of persons, to the equal protection of the laws.
Docket entry 52, at 93 (Emphasis added).
Docket entry 52, at 93 (Emphasis added).
The above quoted paragraph, although reciting some of the language of § 1985(2), fails to specifically identify those defendants who purportedly conspired against plaintiffs; the nature of the conspiracy for which plaintiffs are complaining; how the alleged conspiracy interfered with plaintiffs' participation in a court (federal or state) proceeding; and/or how the alleged conspiracy established a racial or class-based animus against the plaintiffs.
A liberal reading of the amended complaint sheds some light, albeit a very dim one, as to what plaintiffs attempt to plead as a § 1985(2) violation. For instance, plaintiffs purport to claim that they were "framed" by those defendants who were involved in the internal investigation of the placement, and later unauthorized removal, of the computer icons, as well as those defendants who participated in the administrative grievance proceedings concerning Segura's demotion. Plaintiffs maintain that defendants' actions in "framing" them caused Segura to be unfairly demoted and Garcia to be eventually terminated from employment. Further, plaintiffs contend that defendants' actions were motivated by their discriminatory animus towards plaintiffs' active membership and (overt identification) with the Raza political movement and related cultural identity. Particularly, according to plaintiffs, defendants resented an individual in a supervisory position, such as Segura, who held such different views (at least with respect to the Raza movement and/or culture) as theirs. The defendants involved in the internal investigation and administrative grievance proceedings complained of by plaintiffs were: Genevieve Manley, Deborah Billa, Cynthia Hahn, Michael Mason, Timothy Reznicek, Investigator Jones and Dolores Torres.
Docket entry 52, at 54-87, and in particular ¶¶ 37-39, 59-85.
Besides the TDHS' administrative grievance proceedings available to Segura to challenge his demotion, the only other formal proceeding referred to by plaintiffs in their amended complaint involves the instant lawsuit. In that regard, plaintiffs state:
At the very time of preparation of these Pleadings, although much reason to complain about further invidious machinations of the evidence by Defendants is rumored to be taking place, the Defendants continue to clamp down on Plaintiffs' access to the evidence by ordering all TDHS Employees with knowledge of the facts to not disclose or discuss the matter with Plaintiffs and their undersigned counsel. This has grossly serious implication with the Courts must take into account in continuing to perpetuate the grossly unfair advantage to these wrongdoers handed to them here simply because they are White.
Docket entry 52, at 76, ¶ 67.
Docket entry 52, at 76, ¶ 67.
Because plaintiffs have failed to state a claim under 42 U.S.C. § 1985 (2), as discussed more fully below, defendants' motions to dismiss said claim should be granted.
42 U.S.C. § 1985 provides, generally, that:
in any case of conspiracy set forth in this section, if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages, occasioned by such injury or deprivation, against any one or more of the conspirators. Id .
Two broad categories of conspiracies are described in § 1985(2). The first four clauses of § 1985(2) describe conspiracies that are designed to obstruct the course of justice in the federal judicial system. The last two clauses of § 1985(2) guard against those obstructions of justice "in any State or Territory" which have as their objects the denial of the equal protection of the laws.
See Brawer v. Horowitz, 535 F.2d 830, 839-40 (3d Cir. 1976) and Bradt v. Smith, 634 F.2d 796, 800-01 (5th Cir.), cert. denied, 454 U.S. 830 (1981).
§ 1985(2) provides, in part:
If two or more persons in any State or Territory conspire to deter by force, intimidation, or threat, any party or witness in any court of the United States from attending such court, or from testifying to any matter pending therein, freely, fully, and truthfully, or to injure such party or witness in his person or property on account of his having so attended or testified, or to influence the verdict, presentment, or indictment of any grand or petit juror in any such court, or to injure such juror in his person or property on account of any verdict, presentment, or indictment lawfully assented to by him, or of his being or having been such juror . . .42 U.S.C. § 1985 (2) (West 1994 Supp. 2000).
Section 1985(2) continues:
[O]r if two or more persons conspire for the purpose of impeding, hindering, obstructing, or defeating, in any manner, the due course of justice in any State or Territory, with intent to deny any citizen equal protection of the laws, or to injure him or his property for lawfully enforcing, or attempting to enforce, the right of any person, or class of persons, to the equal protection of the laws; . . .
Because the first four clauses of § 1985(2) refer to conspiracies that are designed to obstruct the course of justice "in any court of the United States," plaintiffs seeking to recover under those clauses must show a nexus between the alleged conspiracy and a proceeding in federal court. Plaintiffs fail to do so in this case. With the exception of the instant lawsuit, there was no prior federal court proceeding in this case. Plaintiffs' amended complaint in fact does not make any allegations concerning the existence of a prior federal proceeding. The only prior proceeding in this case was TDHS' administrative grievance proceeding available to Segura to challenge his demotion, and in which Garcia participated as a witness. This proceeding, however, does not meet the federal court nexus requirement.
To the extent that plaintiffs attempt to plead a conspiracy to interfere with their participation in the instant case, this claim fails because it would have been impossible for the defendants to have conspired to interfere with plaintiffs' rights in this case prior to the filing of the complaint. Further, plaintiffs' disagreement with my ruling staying discovery pending the resolution of the qualified immunity defense asserted by the defendants cannot form the basis of a conspiracy under § 1985(2). Having given plaintiffs an opportunity to replead their complaint one time, I am convinced that granting leave to amend the complaint one more time (although not requested by plaintiffs) would be futile in curing the fatal pleading deficiencies outline above.
Plaintiffs have also failed to establish a conspiracy under the last two clauses of § 1985(2). These last two clauses are designed to address conspiracies to interfere with plaintiffs' participation in a state court proceeding in order to deny them equal protection of the laws. Plaintiffs who seek to recover under these clauses must show a racial or class-based discriminatory animus against them.
Id. See Bradt, 634 F.2d at 801 (citing Slavin v. Curry, 574 F.2d 1256, 1262 (5th Cir. 1978)); and Brawer . 535 F.2d at 840.
Plaintiffs fail to plead with specificity the alleged illegal acts that were committed by the individual defendants in this case, or how these individuals "impeded, hindered, obstructed, or defeated" plaintiffs from participating in a state court proceeding. To the contrary, plaintiffs described the individual defendants' actions as: reporting a violation of agency policy, investigating the incident involving the computer icons; making disciplinary decisions affecting TDHS' personnel, and participating in Segura's administrative grievance proceedings.
Docket entry 52, at 72-87.
Even assuming, arguendo, that a TDHS' administrative hearing could be construed as a state court proceeding pursuant to § 1985(2), plaintiffs have nevertheless failed to allege how they were hindered from participating in said proceeding. In fact, plaintiffs themselves have pleaded that Segura gave a statement to Investigator Jones which was made part of the Investigation Report. After having been appraised of the TDHS' recommendation to demote him, Segura was given the opportunity to request a management conference to challenge it. Segura attended the same and was represented by counsel. Once TDHS affirmed its recommendation to demote him, Segura requested, and was granted, an administrative hearing before an ALJ to appeal it. Further, Segura testified at the hearing and obtained a favorable ruling from the ALJ. The ALJ's ruling in Segura's favor was due to Garcia's testimony at the hearing in which he recanted his earlier version by denying any wrongdoing on the part of Segura in the placement of the computer icons. Even after having obtained a favorable decision at the administrative hearing level, plaintiffs continue to allege that the entire proceeding was unfair, from its inception, for the simple reason that "white people" administered it. This conclusory allegation cannot serve as the basis to state a viable § 1985(2) claim.
Id .
Id . at 79-80, ¶¶ 72 73.
The amended complaint is also replete with unfounded assertions that the federal court system, and particularly, the judiciary in this division, is in itself biased and discriminatory against Raza members because it is comprised of mostly "White Judges" or "Hispanie Judges" who have acquiesced to the "White Hegemony" in order to succeed. Docket entry 52, at 59, 71 fn. 72, and 77-87.
Likewise, plaintiffs have failed to allege a conspiracy based on a racial or class-based invidious discriminatory animus on the part of defendants to deny them equal protection of the laws. The amended complaint is devoid of any specific facts as to the identity of the individual defendants who purportedly discriminated against them, and/or the nature of the conspiracy complained of, and more importantly, how the alleged conspiracy between these defendants demonstrates a racial or class-based discriminatory animus against the plaintiff. The only assertions made in the complaint are those related to the plaintiffs' general perspectives on the plight of the Raza members. Moreover, in taking plaintiffs' definition of the term "Raza" as stated in their complaint, I fail to see how it establishes a racial group within the ambit of the equal protection clause. According to plaintiffs' conclusory allegations, the only conceivable explanation for defendants' disciplinary action had nothing to do with their involvement in the placement of inappropriate computer icons, but rather was motivated by their supposed discriminatory animus against them as Raza members. Plaintiffs have not pleaded how Mexican-American employees, or even Native-American employees, as a group, were conspired against at TDHS. For example, plaintiffs, as Raza, try to distinguish themselves from the so-called "Hispanic" employees (such as Dolores Torres) who have acquiesced to the ways of the "White Management" in order to advance their careers at the agency. This assertion, with no factual support, does not sufficiently suggest a racial or class-based invidiously discriminatory animus behind the actions complained of by plaintiffs.
Docket entry 52, at6 fn. 6.
Because it is my opinion that allowing plaintiffs to replead would be futile in curing the fatal deficiencies of their amended complaint, as discussed above, defendants' motion to dismiss plaintiffs' § 1985(2) cause of action (docket entries 56 89) should be granted. D. Plaintiffs have failed to establish a prima facie case of intentional discrimination under Title VII and 42 U.S.C. § 1981
Plaintiffs were given until February 1, 2001 to respond to the Lindseys' motion to dismiss (docket entry 89). Plaintiffs have not filed their response as of the entry date of this Memorandum. A review of the record in this case indicates the lack of adherence by plaintiffs' counsel to the requirements of the Federal Rules of Civil Procedure and Local Rules, as exhibited by his continuous failure to timely respond to defendants' dispositive motions and other pleadings in this case.
A reading of plaintiffs' amended complaint reveals their attempt to plead an employment discrimination suit against defendants stating that as Raza members they were disparately treated in their conditions of employment. Specifically, plaintiffs allege disparate treatment in TDHS' enforcement of its work rules and policies against them. Also, it appears Segura has attempted to plead a failure to promote claim. Defendants have moved for judgment on the pleadings, or in the alternative, for summary judgment on the following grounds: (1) there is no individual liability under Title VII as a matter of law, and as such, the individual defendants should be dismissed from the instant suit; (2) plaintiffs have failed to establish their prima facie case of intentional discrimination under Title VII, namely that they belonged to a protected group and that other employees, non members of their protected group, were treated differently under "nearly identical circumstances;" (3) with respect to Segura's failure to promote claim, defendants argue that he has failed to establish that he was qualified for the position sought; and (4) even assuming, arguendo, that plaintiffs have met all elements of their prima facie case, TDHS has provided legitimate non-discriminatory reasons for its actions regarding both plaintiffs. Even though plaintiffs were given an extension to file their response to defendants' summary judgment motion, they have not done so as of this date. Because defendants rely on evidence outside the scope of the amended complaint and amended answers in seeking judgment on plaintiffs' substantive claims under Title VII, their motion will be analyzed under the summary judgment standard.
Docket entry 95, at 15-26.
1. No Evidence That Plaintiffs Have Exhausted Their Administrative Remedies
As a preliminary matter, it should be noted that it appears that plaintiffs have failed to exhaust their statutory administrative remedies with respect to their Title VII claims because there is no mention in their complaint, or anywhere in the record, that they filed a charge of discrimination with the EEOC before commencing the instant lawsuit. According to the record, Garcia's effective date of termination from employment was January 31, 2000. The plaintiffs filed the instant lawsuit on February 17, 2000. Even assuming that plaintiffs did file an EEOC charge, either jointly or separately, at least with respect to Garcia, it is highly unlikely that the EEOC would have processed the charge, investigated it, entered a notice of dismissal and issued a right to sue letter, in a time period of less than three weeks.
In Texas, to maintain a Title VII claim, a plaintiff must file a charge of discrimination with the EEOC and/or the Texas Commission of Human Rights within 300 days of the "alleged unlawful employment practice." See 42 U.S.C. § 2000e-5 (e); Dupont-Lauren v. Schneider (USA), Inc., 994 F. Supp. 802, 814 (S.D. Tex. 1998) (citing Anson v. University of Texas Health Science Center at Houston, 962 F.2d 539, 540 (5th Cir. 1992)).
Docket entry 95, at 10; and docket entry 92, Affidavits of Manley (Tab. 1) and Billa (Tab. 4).
Docket entry 1.
According to the Fifth Circuit case of Tolbert v. United States, there are two jurisdictional pre-requisites a plaintiff must meet before filing a Title VII action in federal court: (1) the complaint must be filed within the time allotted by Title VII (90 days), and (2) the complainant must first have exhausted her administrative remedies. "Failure to comply with either of those requirements wholly deprives the district court of jurisdiction over the case; it is well-settled law of this circuit that each requirement is a prerequisite to federal subject matter jurisdiction." Plaintiffs have the burden of establishing that the jurisdictional prerequisites have been met prior to twinging an action in federal court, that is, that they have exhausted their administrative remedies. Further, plaintiffs bringing employment discrimination cases must state in their complaints that they have exhausted the administrative remedies available to them as a condition precedent to filing suit in federal court. In that regard, plaintiffs routinely attach a copy of their EEOC charge and right to sue letter (if applicable) to their complaints. Plaintiffs have failed to do so in this case. Not meeting the jurisdictional prerequisite of exhausting their administrative remedies can result in dismissal of the instant Title VII action. Curiously, defendants did not move for judgment on this issue. Even though plaintiffs have clearly not met the jurisdictional prerequisites for filing a Title VII action in federal court, I will nevertheless analyze the substantive merits of plaintiffs' allegations.
916 F.2d 245 (1990).
Id . at 247 (emphasis supplied). See also Barnes v. Levitt, 118 F.3d 404, 408-09 (5th Cir. 1997) (district court lacked jurisdiction over employee's Title VII claims, given her failure to exhaust administrative remedies), cert. denied, 118 S.Ct. 1839 (1998); Bickham v. Miller, 584 F.2d 736, 737 (5th Cir. 1978) (employee's failure to submit an administrative complaint within 300 days of the promotion denial warranted dismissal of the suit for lack of jurisdiction). No such administrative exhaustion requirement exists for a claim brought under 42 U.S.C. § 1981. See Walker v. Thompson, 214 F.3d 615, 624 (5th Cir. 2000).
Tolbert, 916 F.2d at 247-48 (citations omitted).
42 U.S.C. § 2000 e-5(f)(3).
2. No Individual Liability Exists Under Title VII
Before discussing the analytical framework applicable to Title VII claims, I must consider defendants' motion for judgment on the pleadings on plaintiffs' Title VII claim against the individually named defendants, pursuant to RD. R. Civ. P. 12(c).
It is settled law that "individual defendants [such as employees, supervisors, or agents of the agency/corporate employer] cannot be held liable for damages under Title VII." The court need not look beyond the pleadings to determine that as a matter of law plaintiffs cannot prevail against these defendants. In this case, plaintiffs have named these individuals in their amended complaint and described them by their titles as employees of defendant TDHS. Accordingly, defendants' Rule 12(c) motion for judgment on the pleadings (docket entry 95) on plaintiffs' Title VII claims against individual defendants Michael Mason, Deborah Billa, Genevieve Manley, Cynthia Hahn, Timothy Reznicek, Phillip Jones, Dolores Torres, J.M. Lindsey and Karen Lindsey, should be granted.
3. Plaintiffs cannot meet their prima facie case of intentional discriminationa. Analytical Framework
See Huckabay v. Moore, 142 F.3d 233, 241 (5th Cir. 1998) (if named defendant acted only in his individual capacity, he did not act as an "employer" and would not be liable under Title VII); and Grant v. Lone Star Co., B.L., 21 F.3d 649, 652-53 (5th Cir.) (same), cert. denied, 513 U.S. 1015 (1994).
Docket entry 52, at 7-9.
At least one district court has held that the Civil Rights Act of 1991 did not intend to include individual supervisory personnel within the meaning of "employer." See Vodde v. Indiana Michigan Power Co., 852 F. Supp. 676, 680-81 (ND. Ind. 1994); and 42 U.S.C. § 1981a.
A plaintiff can prove a claim of intentional discrimination under Title VII by either direct or circumstantial evidence. Absent direct evidence of discriminatory intent, prcof via circumstantial evidence is evaluated using the framework set forth in the seminal case of McDonnell Douglas Corp. v. Green . "First, the plaintiff must establish a prima facie case of discrimination." Second, the employer must respond with a legitimate, nondiscriminatory reason for its decision. The burden on the employer is only one of production, not persuasion, involving no credibility assessments. Third, if the employer carries its burden, the "mandatory inference of discrimination" created by the plaintiff's prima facie case, "drops out of the picture" and the fact finder must "decide the ultimate question: whether [the] plaintiff has proven [intentional discrimination]."
411 U.S. 792 (1973).
Reeves v. Sanderson Plumbing Prods., Inc., 120 S.Ct. 2097, 2106 (2000).
See McDonnell Douglas, 411 U.S. at 802.
See Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 255-56 (1981).
Id . at 256 n. 10.
St. Mary's Honor Center v. Hicks, 509 U.S. 502, 51-12 (1993).
In making this showing, the plaintiff can rely on evidence that the employer's reasons were a pretext for unlawful discrimination. "[T]he trier of fact may still consider the evidence establishing the plaintiff's prima facie case `and inferences properly drawn there from . . . on the issue of whether the defendant's explanation is pretextual.'" However, as the United States Supreme Court stated in Hicks, a showing of pretext does not automatically entitle an employee to a judgment as a matter of law. It is "not enough . . . to disbelieve the employer; the [fact finder] must believe the plaintiff's explanation of intentional discrimination." This statement in Hicks apparently caused confusion as to whether intentional discrimination could be inferred from a showing of pretext.
See McDonnell Douglas, 411 U.S. at 804.
Reeves, 120 S.Ct. at 2106 (quoting Burdine, 450 U.S. at 255 n. 10).
Hicks, 509 U.S. at 524.
Id . at 519 (Emphasis in original).
Reeves, 120 S.Ct. at 2104-05 (describing the circuit conflict resulting from the confusion).
The United States Supreme Court recently resolved the circuit split in Reeves by rejecting the "pretext-plus" approach, thus overruling the Fifth Circuit's decision in that case. A unanimous Court held that the Fifth Circuit had "misconceived the evidentiary burden borne by plaintiffs who attempt to prove intentional discrimination through indirect evidence." "Thus, a plaintiff's prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated."
Reeves v. Sanderson Plumbine Products, Inc., 197 F.3d 688 (5th Cir. 1999); and Reeves, 120 S.Ct. at 2108.
Reeves, 120 S.CT. at 2108.
Id .at 2109.
The Court in Reeves further stated that, more likely than not, a showing of pretext will lead to an inference of discrimination: "Moreover, once the employer's justification has been eliminated, discrimination may well be the most likely alternative explanation, especially since the employer is in the best position to put forth the actual reason for its decision."
Id . at 2108-09.
The Reeves Court also cautioned that there may be instances, although rare, where a showing of pretext would not be sufficient to infer discrimination. Such a situation would occur "if the record conclusively revealed some other, nondiscriminatory reason for the employer's decision, or if the plaintiff created only a weak issue of fact as to whether the employer's reason was untrue and there was abundant and uncontroverted independent evidence that no discrimination occurred."
Id . at 2109 (emphasis added). The Reeves ruling rejected part of the Fifth Circuit's decision in Rhodes v. Guiberson Oil Tools, 75 F.3d 989 (1996). In so doing, the Court noted that Rhodes stood for the proposition that the "plaintiff must introduce sufficient evidence for [the] jury to find both that [the] employer's reason was false and that [the] real reason was discrimination." Reeves, 120 S.Ct. at 2105 (emphasis added) (statement in parenthetical). This pretext-plus requirement is contrary to the Reeves Court's holding that the employer's prevarication may be sufficient in many cases to demonstrate discriminatory animus. Id . at 2108-09. While portions of the Rhodes decision do not appear to fully comport with Reeves, the Fifth Circuit has already recognized central features of the Rhodes decision that survive Reeves . See vadie v. Miss. State Univ., 218 F.3d 365, 373 n. 23 (5th Cir. 2000) (" Rhodes is consistent with Reeves and continues to be the governing standard in this [Fifth] Circuit."). Nevertheless, in evaluating plaintiff's discrimination claim under the McDonnell Douglas framework, this court is cognizant that it must not unduly restrict a plaintiff's circumstantial case of discrimination.
With this framework in mind, I will proceed to analyze plaintiffs' evidence in support of their prima facie case of discrimination under Title VII.
b. Application of the Analytical Framework
Title VII provides that:
[i]t shall be an unlawful employment practice for an employer — (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges or employment, because of such individual's race, color, religion, sex, or national origin.
Under the McDonnell Douglas circumstantial evidence framework, to establish a prima facie case of disparate treatment in the enforcement of TDHS' work rule violations, plaintiffs must prove three elements: (1) that they are members of a protected group; (2) they suffered an adverse employment action based on a work rule violation; and (3) either they did not violate the rule or that, even if they did, employees (not in their protected group), who engaged in similar acts were not punished similarly. For Segura to establish his failure to promote claim, he must prove that: (1) he is a member of a protected group; (2) he applied for and was qualified for a job for which TDHS was seeking applicants; (3) despite his qualifications, he was rejected; and (4) after his rejection, the employer promoted another employee not in his protected group. c. Disparate treatment in the enforcement of TDHS' work rules
See Vaughn v. Edel, 918 F.2d 517, 521 (5th Cir. 1990).
See Dupont-Lauren v. Schneider (USA), Inc., 994 F. Supp. 802, 818 (S.D. Tex. 1998); and Cochrane v. Houston Light and Power Co., 996 F. Supp. 657, 663 (S.D. Tex. 1998).
To succeed in establishing their prima facie case of disparate treatment, Segura and Garcia must show that other similarly-situated employees, non-members of their protected class, were treated differently under circumstances "nearly identical to [theirs]." Defendants contend that plaintiffs cannot meet two of their prima facie elements, that is, that they are members of a protected group; and that other similarly-situated employees, not in plaintiffs' protected group, were treated differently ( i.e., more leniently than they were treated) for the same or similar work rule infractions.
See Mayberry v. vought Aircraft Co., 55 F.3d 1086, 1091 (5th Cir. 1995) (no disparate treatment found) (citations omitted).
Docket entry 95, 16-22.
Regarding whether plaintiffs are members of a protected group, they assert they are "Raza." According to plaintiffs, the term "Raza" is not to be equated with the terms "Hispanic" or "Latino." Plaintiffs argue that those individuals, even of Mexican-American descent such as Dolores Torres, who perceive themselves as "Hispanic" or "Latino" have in essence adopted non-indigenous "European" cultural practices and become "white" in order to succeed. Throughout their amended complaint, plaintiffs alternatively use the term "Raza" to describe a racial or ethnic identity on the one hand, and a cultural identity/political affiliation on the other.
Docket entry 52, at ¶¶ 31-34.
Id . at 36-39.
Plaintiffs' self-identification as "Raza," in and of itself, does not establish that they belong to the protected category of "Native Americans." In Campos v. City of Baytown, Texas, a case brought under the Voting Rights Act, the Fifth Circuit relied on the legal usage given by the Bureau of the Census to the term "Native American" or "American Indian:"
849 F.2d 943 (5th Cir. 1988), cert. denied, 492 U.S. 905 (1989).
The category of American Indian includes persons who indicated their race as Indian (American) or who did not indicate a specific race category but reported the name of an Indian tribe. The population designated as Alaskan Native includes persons residing in Alaska identified themselves as Aleut, Eskimo, or American Indian.
Id . at 945 fn.1.
Id . at 945 fn.1.
Because not every American Indian or Native American is necessarily "Raza," as that term has been defined by the plaintiffs in this case, I fail to see how the term can be used to denote a race, an Indian tribe, or a national origin.
Moreover, plaintiffs' self-designation as "Raza" in the cultural/political sense — that they "refuse to become white to succeed," or that they are "not willing to forego all present commitment, affiliation or association with such organizations such asLa Raza Unida Party . . ." — also fails to establish that they belong to a protected group as envisioned by Title VII. In Garcia v. Gloor, a case relied upon by TDHS, the Fifth Circuit considered a claim brought by a Mexican-American employee that his employer's "English only" rule violated the rights of Mexican-American employees on the basis of their national origin. In finding that the "English only" rule at issue did not violate Title VII, the Garcia court noted that Title VII is directed at impermissible bases of discrimination such as those based on immutable characteristics i e race, color, religion, sex, or national origin:
Docket entry 52, at ¶ 31.
618 F.2d 264 (5th Cir. 1980), cert. denied, 449 U.S. 1113.
National origin must not be confused with ethnic or sociocultural traits or an unrelated status, such as citizenship or alienage [. . .] or poverty [. . .], or with activities not connected with national origin, such as labor agitation, [. . .]. Save for religion the discriminations on which [Title VII] focuses its laser of prohibitions are those that are either beyond the victims' power to alter, [. . .] or that impose a burden on an employee on one of the prohibited bases. No one can change his place of birth (national origin), the place of birth of his forebears (national origin), his race or fundamental sexual characteristics
Id . at 269 (Emphasis added).
Id . at 269 (Emphasis added).
As in Garcia, plaintiffs in the present case base their Title VII claims of discrimination on mutable characteristics by arguing they have been discriminated against because of their cultural/political practices. For example, they contend their opportunities for career advancement at TDHS were thwarted because they refused to "think like white people" or "give in to the White Establishment," continuing instead to conduct themselves as "Raza." As discussed more fully below, besides making these conclusory allegations, there is no evidence on the record that TDHS has denied Segura (who had been employed at TDHS since 1976) and/or Garcia conditions of employment due to their cultural and/or political affiliation. Even if TDHS had in fact penalized plaintiffs (as they contend), for their cultural practices, such practices are not immutable characteristics as described above; and thus, not protected by Title VII.
Based on their Spanish surnames, the only protected national origin group that can be inferred from plaintiffs' complaint is that of "Hispanic" or "Latino." Plaintiffs have nevertheless strongly objected to belonging to that group. Accordingly, because plaintiffs have failed to establish their first prima facie element that they belonged to a protected group, TDHS' motion for summary judgment should be granted on that basis. I will nevertheless proceed to discuss whether plaintiffs have met their third prima facie element of disparate treatment.
Docket entry 52, at 42, ¶ 19.
Besides disagreeing with TDHS' characterization of the computer icons as being "inappropriate," "sexual in nature" and "non-work related," plaintiffs do not dispute the actual titles of the icons. It is also undisputed that the discovery of such icons by a female co-worker prompted an internal investigation of plaintiffs' involvement in the incident. According to the results of the investigation with respect to plaintiffs' involvement, TDHS made the disciplinary decision to demote Segura into a non-supervisory position and give Garcia a three-day suspension without pay. When it was later discovered that Garcia had given a false statement to the investigator concerning Segura's involvement in the placement of the icons, TDHS made the decision to terminate his employment. The agency work rules or policies involved in the demotion of Segura were: (1) TDHS Agency Work Rule No. 4710 § B-4 (personal conduct expected of an employee to further the agency's goals and objectives) and § B-12 (prohibiting the unauthorized use of agency property for personal purposes); (2) TDHS Computer Security Agreement (prohibiting the personal use of the agency's automated system for a non work related purpose or the unauthorized alteration of the system's database); and (3) TDHS Automation and Telecommunications Handbook, § 3510 (governing the proper use of the agency's automated system by employees in accordance with state law). The work rule involved in Garcia's termination, TDHS Work Rule 4710 § B-10, specifically prohibited making false statements on any agency document or against any co-worker. The essence of their federal complaint, however, is that other similarly-situated employees, not members of their protected group (assuming that plaintiffs have met this element), were treated differently for similar work-rule infractions. Both plaintiffs fail to meet this burden.
Docket entry 95, at 23(a)(d); and docket entry 92, Manley's Affidavit (Tab.1), Attachments A-D.
Docket entry 92, Manley's Affidavit (Tab. 1), Attachment B.
In Segura's case, the only two employees he has identified throughout his complaint for purposes of disparate treatment analysis are: Dolores Torres (Mexican-American) and Karen B. Lindsey (presumably Caucasian). Neither individual violated similar or "nearly identical" work rule infractions. For example, in the case of Dolores Torres, Segura alleges that he himself was investigating her for excessive personal use of the telephone during business hours. Segura alleges that instead of disciplining her for her excessive phone use, TDHS decided instead to reward her (i.e., by transferring to another office location of her choice) for having discovered and reported the computer icons at issue in this case. Dolores Torres was a Medicaid Eligibility Worker with no supervisory duties. Assuming that Segura's allegations are true, Torres' alleged excessive telephone use is in no way related or similar to the work rule infractions for which he was disciplined.
Docket entry 92, Affidavit of Dolores Torres (Tab. 2).
With respect to Karen Lindsey, who was Segura's secretary, TDHS discovered during the investigation of the computer icons that Segura had approved an arrangement whereby Lindsey would finish her work-related duties early to work for her husband's janitorial service during business hours. This arrangement was approved by Segura himself without following the agency's protocol concerning requests for dual employment. Once TDHS discovered the arrangement, it counseled Lindsey and instructed her to discontinue her dual employment activities. TDHS also advised Segura that as Lindsey's direct supervisor, he should not have approved the arrangement without following agency procedures. To argue that Karen Lindsey's work rule violation, which was in fact condoned by Segura as her supervisor, presented nearly identical circumstances as Segura's situation, is unfounded. Segura has simply failed to identify even one supervisory employee who was not demoted after having violated similar work rules and policies. The fact that TDHS initially relied on Garcia's written statement directly implicating Segura in the incident, which was later proved to be false, is of no consequence. Where an employer incorrectly believes an employee has violated work policy and acts on that good faith belief, it does not constitute discrimination under Title VII.
Docket entry 92, at 25 Manley's Second Affidavit (Tab. 8).
Mayberry, 55 F.3d at 1092 (plaintiff did not offer evidence sufficient to support a finding that white employees in circumstances "nearly identical" so his have been treated differently); and Little v. Republic Ref. Co., 924 F.2d 93, 96-97 (5th Cir. 1991) (rejecting rebuttal evidence of disparate treatment because circumstances were not "nearly identical.").
See Jefferies v. Harris County Community Action Association, 615 F.2d 1025, 1036 (5th Cir. 1980) (citations omitted).
Garcia's disparate treatment claim is weaker than Segura's because he fails to identify even one similarly-situated employee, not in his protected group (assuming that he has met that element), who was not terminated under similar circumstances for having provided a Ihlse written statement about a co-worker. Because plaintiffs have failed to establish their prima facie cases of disparate treatment under Title VII, namely that they belong to a group protected under the statute, and that other similarly-situated employees, not in their protected group, were treated differently by TDHS for similar or nearly identical work rule infractions, I recommend that TDHS' summary judgment motion on that claim (docket no. 95) be granted.
d. Failure to Promote Claim
To the extent that Segura has pleaded a failure to promote claim, by asserting that he, and not Deborah Billa, should have been promoted for the position of Regional Director for the Long Term Care Services Program, that claim fails as well. According to the uncontradicted summary judgment evidence submitted by defendants, that position was two management levels above a supervisory position such as the one held by Segura. Further, defendants have presented competent summary judgment evidence, not refuted by plaintiffs, that TDHS, in reviewing both candidates, determined that Billa's employment background was more suitable for the promotion. For example, Billa's background included having served as Program Manager (a position one management level above that of supervisor) at TDIIS for a period of ten years and as Interim Regional Director. Segura has provided no evidence, besides his speculations and beliefs, that would lead me to conclude that TDHS' decision to promote Billa and not him was motivated by unlawful discrimination. Accordingly, TDHS' motion for summary judgment (docket entry 95) should be granted on this claim.
Docket entry 52, at 52.
Docket entry 92, at 24.
e. Plaintiffs' Claim under § 1981
Section 1981, which originated in the Civil Rights Act of 1866, assures "all persons" the same rights "enjoyed by white citizens" in making and enforcing contracts and in exercising other described rights. "Section 1981 is a parallel remedy against discrimination which may derive its legal principles from Title VII." Because the employment discrimination claims brought by plaintiffs in this case under both § 1981 and Title VII are analyzed under the same evidentiary framework, plaintiffs' § 1981 claim fails for the same reasons discussed above. E. Plaintiffs have failed to establish a viable cause of action under 42 U.S.C. § 1983
See Garcia, 618 F.2d at 271 (quoting Blum v. Gulf Oil Corp., 597 F.2d 936, 938 (5th Cir. 1979)).
See Walker, 214 F.3d at 625. Alternatively, for the reasons set forth in defendants' brief, plaintiffs' § 1981 claim against the named defendants, sued in their individual capacities, fails on the basis they are entitled to qualified immunity. See docket entry 92.
Plaintiffs have purportedly asserted equal protection and due process claims under § 1983. Defendants have moved for summary judgment on those claims arguing that plaintiffs have failed to establish a violation of a well-established constitutional right, and alternatively, that the named defendants, sued in their individual capacities, are entitled to qualified immunity. 1. Equal Protection Claim
Docket entry 52, at 92-93.
Docket entry 92, at 15-41.
In asserting a claim under the Equal Protection Clause of the Fourteenth Amendment, plaintiffs have simply restated their Title VII disparate treatment and failure to promote claims. Plaintiffs' claims of intentional racial and/or national origin discrimination may not also form the basis of a second, separate claim under § 1983, unless the facts relied upon also establish a violation of some federal right independent of Title VII. Consistent with my recommendation that plaintiffs have failed to establish a prima facie case of intentional discrimination under Title VII, plaintiffs have also failed to establish a violation of a federal right independent of Title VII. Accordingly, the defendants' motion for summary judgment (docket entry 92) on plaintiffs' Equal Protection claim should be likewise granted. 2. Due Process Claim
See Southard v. The Texas Board of Criminal Justice, 114 F.3d 539, 548-49 (5th Cir. 1997).
Alternatively, lbr the reasons set forth in defendants' brief, plaintiffs' equal protection claim against the named defendants, sued in their individual capacities, fails on the basis they are entitled to qualified immunity. Docket entry 92, at 24-41.
Regarding their due process claim, Segura and Garcia offer little guidance in their complaint for the factual underpinnings of this cause of action. For instance, they appear to allege that: (1) TDHS did not follow its own policies because, according to their own interpretation, the installation of the "non-work related" computer icons, many of which had titles sexual in nature, could not have legitimately been found to be in violation of agency policy; (2) TDHS' internal investigation was conducted unfairly in that they were never approached or given an opportunity to explain their side of the story; (3) plaintiffs deny that Garcia intentionally made a false written statement to Investigator Jones implicating Segura in the placement of the computer icons; and (4) plaintiffs allege that the administrative hearing process was tainted and biased from its inception, regardless of the favorable outcome for Segura. Based on the summary judgment record before me, none of these allegations proves a violation of a well-established constitutional right.
Docket no. 52, at ¶ 92.
Id . ¶ 81 fn. 81.
Id . at ¶¶ 74 85.
Id . at ¶ 77.
Id . at 79-82 fns. 77 78.
The Fourteenth Amendment forbids government conduct that deprives "any person of life, liberty, or property without due process of law." Due process has two major meanings:
first, substantive due process may require courts to void certain types of government action that infringe on individual rights and individual freedom of action; second, procedural due process may require the government to assure that individuals are afforded certain procedures before they are deprived of life, liberty, or property. Although the plaintiffs do not specify which prong of the due process clause TDHS is supposed to have violated, I can infer from their amended complaint and summary judgment response, and in particular the allegations stated above, that they are asserting a violation of their procedural due process rights.
See Frazier v. Garrison I.S.D . 980 F.2d 1514, 1528 (5th Cir. 1993) (citing United States v. LULAC, 793 F.2d 636, 647 (5th Cir. 1986)).
The procedural due process clause requires that once it has been determined that an employee has a protected interest in continued employment, that employee must be given notice and an opportunity to be heard prior to termination. "Notice and an opportunity to be heard," however, does not require the level of due process associated with a court of law. This principle simply requires "some kind of hearing," as appropriate to the nature of the case, prior to the discharge of an employee who has a constitutionally protected property interest in his employment. In evaluating whether an employee was afforded sufficient due process prior to termination, the court must strive to balance the competing interests at stake: the private interests in retaining employment against the governmental interest in the expeditious removal of unsatisfactory employee and the avoidance of administrative burdens, and the risk of an erroneous termination.
See Mullane v. Central Hanover Bank Trust Co., 339 U.S. 306, 313 (1950); Loudermill v. Cleveland Board of Education, 470 U.S. 532, 542 (1985).
See Perry v. Sindemann, 408 U.S. 593, 599 (1972); and Barry v. Barchi, 443 U.S. 55, 65 (1979) (no due process violation where horse trainer whose license was suspended "was given more than one opportunity to present his side of the story.").
Matthews v. Eldridge, 424 U.S. 319, 335 (1976).
In the instant case (assuming that both plaintiffs have established a property interest in continued employment), it is undisputed that Segura was never terminated, and in fact has continued his employment with TDHS to this date. Regarding his demotion, the summary judgment record amply supports the conclusion that Segura received sufficient notice and an opportunity to be heard through the agency's administrative grievance procedures. For instance, both Segura and Garcia gave statements to the agency investigator. Once the investigation concluded, Program Manager Manley reviewed the investigator's report and made the recommendation to demote Segura into a non-supervisory position. Manley's recommendation to demote Segura was based on her good-faith belief that he had violated TDHS Work Rule 4710, §§ B-4 B-12. Upon receiving the demotion recommendation, Segura invoked TDHS' administrative grievance procedures to challenge it. First, he requested a management conference, which was granted. At the management conference, Segura, represented by counsel, was afforded the opportunity to present his side of the story to TDHS' management. After the management conference, however, TDHS affirmed its decision to demote him. At that point, Segura was afforded the opportunity to appeal the decision in a formal administrative hearing before an ALJ. Segura (again, with the assistance of counsel), as well as Garcia, testified at the hearing. At the hearing, Garcia recanted his earlier version of the incident previously given in a written statement to the agency's investigator, by testifying under oath that Segura had no involvement in the placement of the computer icons and accepting full responsibility for the offense. Importantly, upon being questioned at the hearing whether his earlier statement implicating Segura had been in any way been coerced by TDHS, or whether he had attempted before the hearing to correct his earlier false statement, Garcia answered in the negative. Based on Garcia's hearing testimony, the ALJ found that TDHS' decision to demote Segura was erroneous and should be reversed. Shortly after the hearing, TDHS reinstated Segura to the same pay he was earning as a supervisor prior to his demotion.
Docket entry 92, at 19 Manley's Affidavit, Tab. 1.
Id .
Docket entry 92, at 9; and docket entry 93, Segura's Affidavit.
Docket entry 92, at 9.
According to the uncontradicted summary judgment evidence submitted by defendants, it appears that TDHS has attempted, on at least two occasions, to enter into settlement agreements with Segura. These settlement agreements would have provided Segura with back pay as compensation for the higher income he would have earned as a supervisor as compared to the salary he earned for six months in the lower non-supervisory position. Also, according to defendants, the settlement offers would have restored Segura to a supervisory position. Segura has, nonetheless, rejected both settlement offers and is currently employed by TDHS as a CBA Worker IV, although he is paid at the same supervisory level he held prior to his demotion. Clearly, under these facts, Segura's procedural due process claim cannot stand.
Id . Afidavits of Billa (Tab. 4) Manley (Tab. 1).
Id .
Id .
With respect to Garcia, the record is undisputed that he received a three-day suspension for his involvement in the placement of the inappropriate computer icons. It was only after he testified at the administrative hearing that his earlier written statement implicating Segura was false, that TDHS made the decision to terminate his employment. Unlike Segura, it appears that Garcia did not invoke the TDHS' administrative grievance procedure available to him to challenge his termination. Because Garcia testified under oath that his written statement was false, there was no risk of an erroneous termination. Moreover, TDHS also believed that the interest in terminating an employee such as Garcia, who had violated agency policy by providing a false written statement causing another employee a demotion, was compelling.
Docket entry 82, Manley's Affidavit (Tab. 1).
See Eldridge, 424 U.S. at 335; and docket entry 92, at 20 and Mason's Affidavit (Tab. 7) and Billa's Affidavit (Tab. 4).
In addressing plaintiffs' allegations on the interpretation of the computer icons by TDHS, it is important to note that even if TDHS had no basis for finding the computer icons inappropriate or in violation of agency work rules, as plaintiffs contend, TDHS' alleged failure to follow its own policies and procedures does not necessarily constitute a violation of plaintiffs' due process rights. Thus, even if plaintiffs can establish that defendants acted in violation of an agency rule or policy, plaintiffs must prove that their due process rights were violated. The only facts plaintiffs state in support of this argument is their own disagreement with TDHS' interpretation of the icons. In that regard, plaintiffs believed that the icons were not inappropriate as they were meant to facilitate or "bring home" to another co-worker the concept of developing computer icons with "creative" titles to store work related documents. It is well-settled that plaintiffs' personally-held beliefs do not raise a genuine issue of material fact. Based on the summary judgment record, plaintiffs do not dispute the titles of the icons. The undisputed evidence also demonstrates that female employee who discovered the icons, Dolores Torres, was offended by them. The undisputed evidence further shows that as soon as Torres reported the icons to management, that TDHS began a prompt investigation of the incident. There is no competent summary judgment evidence to refute TDHS' bona fide position that its interpretation of the computer icons as "inappropriate" for the workplace under its rules and policies was legitimate and that the discipline imposed on Segura and Garcia was commensurate with the gravity of the offense.
See Levitt v. University of Texas at El Paso, 759 F.2d 1224, 1230 (5th Cir.), cert. denied, 106 S.Ct. 599 (1985).
See Hornsby v. Conoco, Inc., 777 F.2d 243, 246 (5th Cir. 1985).
See Docket entry 93, at 23-24; docket entry 92, Hans' Affidavit (Tab. 3) Jones' Affidavit (Tab. 5).
Docket entry 92, Torres' Affidavit (Tab. 2) Jones' Affidavit (Tab. 5).
Id .
Further, there is no evidence on the record supporting plaintiffs' allegations that the internal investigation and the administrative hearing were unfair. Segura's assertions that he should have been approached first before TDHS began the official investigation of the incident is insufficient to establish that TDHS violated its own procedures or that it violated Segura's due process rights. Both plaintiffs participated in the formal investigation of the incident and were given the opportunity to channel their employment disputes through TDHS' administrative grievance procedures. The only action that was unfair in this case was committed by Garcia when he admittedly provided a false written statement implicating Segura in the incident and causing his demotion.
Because it is my opinion that plaintiffs cannot establish that their procedural due process rights were violated by the defendants, pursuant to 42 U.S.C. § 1983, there is no need to address the qualified immunity defense asserted by the named defendants, in their individual capacities. Accordingly, defendants' motion for summary judgment (docket entry 92) on plaintiffs' § 1983 claim should be granted .
VII. Recommendation
Based on the foregoing, I recommend: (1) that defendants' motions to dismiss plaintiffs' claims under 42 U.S.C. § 1981 1983 against TDHS and the named defendants, sued in their official capacities (docket entries 44 92), be GRANTED based on their Eleventh Amendment immunity and this court's lack of subject-matter jurisdiction to address the same; (2) that defendants' motions to dismiss plaintiffs' claims under 42 U.S.C. § 1982 1985(2) (docket entries 43, 88, 56 89), be GRANTED, as plaintiffs have not pleaded any facts that would support their claims for relief under these statutes (3) that the individually-named defendants' motion for judgment on the pleadings with respect to their individual liability under Title VII (docket entry 95) be GRANTED (4) that defendants' motion for summary judgment on plaintiffs' substantive claims against TDHS under Title VII, and against the named defendants sued in their individual capacities under 42 U.S.C. § 1981 (docket entries 95 92, respectively), be GRANTED, as plaintiffs have failed to allege facts sufficient to entitle them to relief such that there is no genuine issue of material fact under the applicable legal standards; and (5) that the named defendants' motion for summary judgment on plaintiffs' equal protection and procedural due process claims brought against them in their individual capacities under 42 U.S.C. § 1983 (docket entry 92), be GRANTED . as plaintiffs have failed to establish a violation of a well-established constitutional right.
In addition, I hereby DENY the following non-dispositive motions: docket entries 27, 53, 86.