Opinion
Civil Action No: SA-05-CA-653-XR.
September 22, 2006
ORDER
On this date, the Court considered Defendant's motion for summary judgment (Docket No. 11). Plaintiff, Richard Avena, was formerly employed as a Civil Rights Director (Region 8) at the Texas Department of Human Services ("TDHS"). Plaintiff was discharged from his position with the TDHS in December 2003, and he alleges that he was discriminated against because he is Hispanic in violation of Title VII of the Civil Rights Act ("Title VII Claims"), 42 U.S.C. § 1981 ("Section 1981 Claim"), and 42 U.S.C. § 1983 ("Section 1983 Claim"). He also alleges that he was subject to "illegal discrimination in violation of the Fourteenth Amendment to the United States Constitution." He further alleges that his right to due process was violated. Finally, he also alleges that he was retaliated against in violation of Title VII because he previously filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC). After careful consideration, the court GRANTS Defendant's motion for summary judgment (Docket No. 11).
TDHS has now been merged into the Texas Health and Human Services Commission.
I. FACTUAL PROCEDURAL BACKGROUND
Avena was originally hired by TDHS in 1990 as a Regional Civil Rights Compliance Specialist. In 1992, he was promoted to Civil Rights Director (Region 8). In October 1996, he filed a Charge of Discrimination with the EEOC ("1996 Charge") alleging that he was denied a promotion to Assistant Civil Rights Director because of his age and national origin. Although the EEOC found cause to believe that the Age Discrimination in Employment Act (ADEA) and Title VII had been violated, after Plaintiff filed suit in this Court, this Court granted summary judgment in favor of the TDHS and dismissed Plaintiff's claims. See 00-CA-0655-FB (March 1, 2002). The dismissal was subsequently affirmed by the Fifth Circuit. See 02-50322 (Jan. 7, 2003).On March 1, 2003, Steve Currier, Assistant Director for the TDHS civil rights office, became Plaintiff's supervisor due to TDHS restructuring. Before the restructuring, Plaintiff possessed much more autonomy as the Civil Rights Director for Region 8. After the restructuring, all civil rights functions were centrally located in Austin, Texas. As a result of this restructuring, Plaintiff's title (and those similarly titled) was changed to Civil Rights Officer.
On April 1, 2003, Plaintiff was directed to issue a "no cause" finding on a complaint of discrimination (the P. Green Complaint) unless he could provide additional documentation to support his recommendation that the matter be submitted to a settlement conference. Plaintiff refused to follow the directive.
Sometime in May 2003, TDHS's Office of Inspector General (OIG) began an investigation into allegations of sexual harassment, unfair treatment and possible abuse or misuse of authority by a Regional Administrator and/or a Texas Works Regional Director.
On May 13, 2003, because of Plaintiff's refusal to follow the directive regarding the P. Green Complaint, Steve Currier issued Plaintiff a third level notice — a written disciplinary action making Plaintiff ineligible for extended sick leave, performance leave, merit increases and promotions for twelve months.
On May 27, 2003, Avena sent a letter to the Commissioner of the TDHS complaining that he was asked to remove information that referenced certain clients' dissatisfaction with the treatment they received from TDHS employees in San Antonio. Avena also complained that he was directed to close a discrimination complaint with a "no cause" finding rather than merely administratively closing the complaint with no finding issued as to whether any discriminatory conduct occurred or not. Currier and others responded that the food stamp recipients complained of rude treatment, but made no civil rights or discrimination complaint, and that the office of civil rights was not authorized to report on matters that were in essence poor service by TDHS staff. With regard to the "no cause" dispute, Currier relied upon a Deputy Commissioner for Legal Service's conclusion that the TDHS lacked evidentiary support to compel a settlement conference. In this letter Plaintiff also informed the TDHS Commissioner that he felt he was being retaliated against by Currier because of the 1996 EEOC Charge.
On July 22, 2003, Plaintiff filed a Charge of Discrimination (360-2003-04330) with the EEOC ("2003 Charge") alleging sex discrimination, national origin discrimination, age discrimination, and retaliation. In this charge, Plaintiff complains that he was discriminatorily denied a promotion to Assistant Regional Administrator. He also complains of being placed on a third level corrective action notice. In addition, he also alleges that he was retaliated against because he previously filed the 1996 Charge and Title VII Complaint.
On July 24, 2003, the OIG investigator investigating the May 2003 sex harassment complaint issued her report. The investigator concluded that "region 8 staff perceived that retaliation, intimidation, favoritism, sexual harassment and lack of proper management existed in the region." During this OIG investigation, at least one employee complained of sexual comments made by Plaintiff Avena, and another employee complained that Avena failed to follow policies and was a close friend of the Texas Works Regional Director. It was also noted that Plaintiff Avena had briefed various individuals, including the Texas Works Regional Director, on the initial results of the investigation. The investigator concluded that Plaintiff and others "contributed to disruption in the workplace, interfered with the proper performance of duties, office operations, and DHS goals and objectives."
On August 24, 2003, Plaintiff was placed on administrative leave with pay while the OIG report was reviewed.
On September 8, 2003, another OIG report was issued concluding that Plaintiff's charge of being directed to remove the rudeness complaint and Plaintiff's complaint of being directed to "no cause" a complaint lacked evidence of any wrongdoing.
On September 17, 2003, Currier forwarded a recommendation to the TDHS Deputy Commissioner that Avena be dismissed from employment for violation of Work Rule B-4. Currier cited to the OIG investigation findings that Plaintiff created a climate of distrust and discouraged staff from filing a civil rights complaint. Specifically, Currier relied upon the findings that Plaintiff was friends with the Texas Works Regional Director, refused to accept complaints made against the Texas Works Regional Director, actively sought to persuade employees who had filed complaints to withdraw the complaints, and improperly informed the Texas Works Regional Director of the ongoing investigation in violation of confidentiality requirements set forth in TDHS policies.
"An employee is expected to maintain conduct that does not interfere with the proper performance of duties, office operations, or DHS goals and objectives."
On September 26, 2003, Plaintiff submitted a rebuttal to the OIG report. As a result of the rebuttal, OIG re-opened their investigation and Plaintiff remained on administrative leave.
On October 30, 2003, a different OIG investigator completed a fresh investigation and issued a new report and found that on three differing occasions employees attempted to file sex harassment complaints against the Texas Works Regional Director, but that Plaintiff impeded their complaint process.
On November 24, 2003, Currier again recommended that Plaintiff be discharged from his employment. The deputy commissioner concurred in the recommendation. Plaintiff tendered a rebuttal to this recommendation citing his past satisfactory performance appraisals, however, given the OIG reports, the deputy commissioner stood by his dismissal decision.
On December 10, 2003, Plaintiff was discharged and informed in writing of his appeal rights regarding the decision to dismiss him from employment. On December 22, Plaintiff filed a grievance claiming that he was dismissed on false charges, retaliated against for filing a previous Title VII complaint and that he was being dismissed because he was a whistleblower.
On April 14, 2004, the EEOC determined that it was unable to conclude that any violation occurred regarding the 2003 Charge (360-2003-04330) and advised Plaintiff that he had 90 days to file suit in federal court or his right to sue based on this charge would be lost.
On April 22, 2004, an Administrative Law Judge ("ALJ") issued her order finding that Plaintiff breached confidentiality policies, had instructed staff not to follow up on verbal complaints of sex harassment, made repeated requests to a complainant to withdraw her complaint against the Texas Works Regional Director, that Plaintiff's actions interfered with TDHS goals and objectives, that Plaintiff violated various TDHS policies, and that his dismissal was proper.
On August 21, 2004, Plaintiff sent a letter to the EEOC complaining of his discharge. Upon receipt of that letter (apparently on August 25), the EEOC prepared a new Charge of Discrimination (360-2004-10740) ("2004 Charge") claiming only that Plaintiff was dismissed from employment in retaliation for his previous EEOC filings. Plaintiff never amended that charge. On April 20, 2005, Plaintiff's 2004 Charge was dismissed by the EEOC. Plaintiff filed this lawsuit on July 14, 2005.
II. LEGAL ANALYSIS
A. The summary judgment standard.
A summary judgment movant must show by affidavit or other evidence that there is no genuine issue regarding any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). To establish that there is no genuine issue as to any material fact, the movant must either submit evidence that negates 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 evidence in the record is insufficient to support an essential element of the nonmovant's claim or defense. Lavespere v. Niagra Machine Tool Works, Inc., 910 F.2d 167, 178 (5th Cir. 1990), cert. denied, 510 U.S. 859 (1993). Once the movant carries its initial burden, the burden shifts to the nonmovant to show that summary judgment is inappropriate. See Fields v. City of South Houston, 922 F.2d 1183, 1187 (5th Cir. 1991).
Summary judgment is required 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 a judgment as a matter of law. FED. R. CIV. P. 56(c); Celotex Corp., 477 U.S. at 322. In order for a court to conclude that there are no genuine issues of material fact, the court must be satisfied that no reasonable trier of fact could have found for the nonmovant, or, in other words, that the evidence favoring the nonmovant is insufficient to enable a reasonable jury to return a verdict for the nonmovant. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 n. 4 (1986). In making this determination, the court should review all the evidence in the record, giving credence to the evidence favoring the nonmovant as well as the "evidence supporting the moving party that is uncontradicted and unimpeached, at least to the extent that evidence comes from disinterested witnesses" and disregarding the evidence favorable to the nonmovant that the jury is not required to believe. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 152 (2000).
B. Defendant's motion for summary judgment.
Defendant seeks summary judgment arguing: (1) it is immune from any Due Process Claim, Section 1981 Claim, or Section 1983 Claim because of the Eleventh Amendment; (2) it is not a "person" for purposes of section 1983; (3) Plaintiff fails to assert any interference with contract claim for purposes of section 1981; (4) the Section 1981 and 1983 Claims are analyzed in the same manner as the Title VII Claim, and Plaintiff's constitutional claims fail for the same reasons that Plaintiff's Title VII Claims fail; (5) Plaintiff's Title VII Claim based on national origin discrimination should be dismissed because Plaintiff failed to allege that claim in his 2004 Charge; (6) Plaintiff fails to establish a prima facie case of Title VII retaliation; (7) any complaint regarding being placed on third level notice is barred by the 300 day limitations period; (8) any claim regarding being denied a promotion to Assistant Regional Administrator is barred for failure to exhaust administrative remedies; (9) Plaintiff fails to establish any causal nexus between any protected activity and his level three disciplinary action or discharge; and (10) Defendant has articulated legitimate, non-discriminatory reasons for Plaintiff's discharge and Plaintiff fails to present any evidence that these reasons were pretextual.
C. Plaintiff's response to Defendant's motion for summary judgment.
D. Plaintiff's Title VII Claims based on his 2003 Charge are time-barred.
See 42 U.S.C. § 2000e-5Price v. Digital Equipment Corp. 846 F.2d 10261027Azari v. Target Corp. 2005 WL 3299390See Espinoza v. Missouri Pac. R.R. Co.754 F.2d 12471249 Id.
Plaintiff's objections to Defendant's summary judgment evidence are overruled.
Plaintiff filed suit well past the 90 day limitations period. Any allegations based on the 2003 Charge (360-2003-04330) are time-barred. Accordingly, the only Title VII allegation remaining in this case is Plaintiff's contention (based on the 2004 Charge) that he was terminated from his employment in retaliation for his previous filing of the 1996 Charge.
Although the 2004 EEOC charge also alleged retaliation under the Age Discrimination in Employment Act, nowhere does Plaintiff raise an ADEA retaliation cause of action in his Complaint filed in this lawsuit.
E. Plaintiff's Title VII Retaliation Claim based on his 2004 Charge is dismissed on the merits.
To establish a prima facie case of retaliation under Title VII, Plaintiff must show that: (1) he engaged in an activity protected by Title VII; (2) he was subjected to an adverse employment action; and (3) a causal link exists between the protected activity and the adverse employment action. Davis v. Dallas Area Rapid Transit, 383 F.3d 309, 319 (5th Cir. 2004). Plaintiff filed an EEOC charge against TDHS in 1996 which led to a lawsuit being filed in 2000. Plaintiff was discharged in December 2003. Accordingly, he has established at least two elements of a prima facie case.
Interestingly, Plaintiff could have alleged that the 2003 Charge constituted an additional protected activity that he engaged in. Plaintiff, however, is clear in his deposition testimony that the only protected activity he is relying upon is his filing of the 1996 Charge. Likewise, the Complaint filed in this lawsuit only references the 1996 Charge.
With regard to the causal link element, Plaintiff continuously argues that his filing of the 1996 Charge was a motivating factor in the decision to discharge him in 2003. The alleged retaliation in this case occurred at the earliest in September 2003, when Currier made the initial recommendation to discharge Plaintiff. The Fifth Circuit has held "that close timing between an employee's protected activity and an adverse action against him may provide the causal connection required to make out a prima facie case." Swanson v. Gen. Servs. Admin., 110 F.3d 1180, 1188 (5th Cir.), cert. denied, 522 U.S. 948 (1997). However, the Fifth Circuit has never suggested that a six-year plus period could satisfy the causal connection for summary judgment purposes. See e.g. Harvey v. Stringer, 113 Fed. Appx. 629 (5th Cir. 2004) ("This Court has never held that a 10-month time lapse, on its own, is sufficient to satisfy the causal connection for summary judgment purposes.").
Even if this court were to construe Plaintiff's argument that the culmination of the 1996 Charge was the January 7, 2003 dismissal by the Fifth Circuit (an argument not advanced by Plaintiff in this lawsuit), Stinger would appear to indicate that time frame is not sufficient to satisfy the causal connection for summary judgment purposes.
Even if, however, this court were to find that Plaintiff established a prima facie case of Title VII retaliation, TDHS has presented uncontroverted evidence demonstrating that it had legitimate, nondiscriminatory reasons for Plaintiff's termination. In a Title VII retaliation claim, "[a]ssuming the plaintiff is able to establish his prima facie case, the burden then shifts to the defendant to demonstrate a legitimate nondiscriminatory purpose for the employment action. If the defendant makes the required showing, the burden returns to the plaintiff to demonstrate that the employer's articulated reason for the employment action was a pretext for the real, discriminatory reason." Aldrup v. Caldera, 274 F.3d 282, 286 (5th Cir. 2001).
TDHS argues that Plaintiff was discharged because he breached confidentiality policies, had instructed staff not to follow up on verbal complaints of sex harassment, made repeated requests to a complainant to withdraw her complaint against a Texas Works regional director, and Plaintiff's actions interfered with TDHS goals and objectives, and violated various TDHS policies. These findings were made by two independent investigators from the Office of Inspector General and relied upon by TDHS in its decision to discharge Plaintiff. Although Plaintiff testified at his deposition that he thought that the investigations were "sloppy work" and he thought that the investigators were "under a great deal of pressure to get things out", Plaintiff provides only conclusory statements and subjective belief, but no competent summary judgment evidence to indicate that a biased investigation was conducted, or that the investigations were mere pretexts.
The Court notes that over 19 employees were interviewed by the OIG investigators.
The Court notes that the first OIG investigation began on May 23, 2003 and was completed on July 24, 2003. The second OIG investigation began on October 7, 2003 and concluded on October 30, 2003.
Plaintiff's subjective belief and conclusory assertion that (1) the OIG investigation was sloppy work and that (2) Currier already decided to terminate Plaintiff's employment before Currier read the OIG report does not establish a material question of fact on those issues. See Ray v. Tandem Computers, Inc., 63 F.3d 429, 434-35 (5th Cir. 1995) (stating that subjective belief of sex discrimination did not create a material question of fact and affirming summary judgment on the sex discrimination claim). Generalized testimony by an employee regarding his subjective belief is insufficient to make an issue for the jury. Todd v. Waste Management of Texas, Inc., No. SA-03-CV-314-XR, 2004 U.S. Dist. LEXIS 11942, at *9 (citing Marks v. St. Landry Parish Sch. Bd., 75 Fed. Appx. 233 (5th Cir. 2003)).
Plaintiffs allegation that Currier had already decided to fire Plaintiff before receiving the OIG reports is not supported by any competent evidence. The undisputed facts indicate that Currier made his original September 17, 2003 discharge recommendation to the TDHS Deputy Commissioner only after receiving the first OIG investigator report on July 24, 2003. That first OIG report states that Plaintiff and others "contributed to disruption in the workplace, interfered with the proper performance of duties, office operations, and DHS goals and objectives." Currier made his second November 24, 2003 discharge recommendation only after receiving the second OIG investigator report on October 30, 2003. That second OIG report found that on three differing occasions employees attempted to file sex harassment complaints against the Texas Works Regional Director, but that Plaintiff impeded their complaint process.
Plaintiff alleges that during the OIG investigation he was treated differently than non-Hispanic employees who were also investigated by the OIG. Plaintiff asserts that these other non-Hispanic employees were transferred to other duties and were not placed on administrative leave during their investigatory period. The Court interprets this allegation as a disparate treatment claim.
In cases alleging disparate treatment, Plaintiff must establish that other similarly-situated employees were treated more favorably. Plaintiff must show that (1) an employee outside of his protected class was similarly situated; and (2) this employee was treated differently under circumstances "nearly identical" to his. Wheeler v. BL Dev. Cor., 415 F.3d 399, 406 (5th Cir. 2005). When assessing whether employees are similarly situated, courts consider whether the employees were employed in the same job position, whether the employees had different job responsibilities, and whether the same supervisor was involved in the decision making. Williams v. Gonzales, No. 1:04-CV-342, 2005 U.S. Dist. LEXIS 38838, at *35-36 (E.D. Tex. Dec. 14, 2005); Coleman v. Exxon Chem. Corp., 162 F. Supp. 2d 593, 608 (S.D. Tex. 2001).
The Court find that these other non-Hispanic employees were not investigated under circumstances "nearly identical" to Plaintiff's. Unlike Plaintiff, these other non-Hispanic employees were not under investigation for refusing to accept complaints made against the Texas Works Regional Director and for improperly informing the Texas Works Regional Director of ongoing TDHS investigations. Plaintiff has failed to produce any evidence that these other non-Hispanic employees at TDHS were under investigation for substantially similar serious violations of TDHS policy.
Even if the Court were to find that Plaintiff established a prima facie case of retaliation, the court finds that Plaintiff did not present sufficient evidence to create a fact issue regarding the falsity of the reasons provided by TDHS. TDHS provided a legitimate, non-discriminatory reason for Plaintiff's discharge. Plaintiff's past performance evaluations do not cast doubt on TDHS's reason for discharge because these evaluations are completely unrelated to the serious violation of TDHS policy that was the cause of Plaintiff's discharge. Plaintiff was discharged because he activity interfered with an ongoing TDHS investigation; his past performance evaluations do nothing to mitigate the severity of this violation. Plaintiff's retaliation claim based on his 2004 Charge is dismissed on the merits.
F. Plaintiff's Section 1981 and Section 1983 Claims are barred, in part, by sovereign immunity.
"The eleventh amendment clearly interposes a jurisdictional bar to suits against a state by private parties who seek monetary relief from the state in the form of compensatory damages, punitive damages, or monetary awards in the nature of equitable restitution, and also to suits against a state or state agency or state official when the monied award is to be paid from the state treasury." Chacko v. Texas A M Univ., 960 F. Supp. 1180, 1197 (S.D. Tex. 1997) ( quoting Clay v. Texas Women's Univ., 728 F.2d 714, 715 (5th Cir. 1984)), aff'd, 149 F.3d 1175 (5th Cir. 1998). This immunity extends to federal claims against state employees in their official capacities. Such claims are equivalent to suits against the State and are subject to the Eleventh Amendment bar. Monell v. New York City Dept. of Social Serv., 436 U.S. 658, 690 n. 55 (1978); Ganther v. Ingle, 75 F.3d 207, 209 (5th Cir. 1996). The State of Texas has not waived its sovereign immunity regarding these claims. Accordingly, Defendant's motion for summary judgment regarding these claims is granted.
D. Although Plaintiff's equitable remedy under section 1981 is not barred by sovereign immunity, Plaintiff's substantive Section 1981 Claim fails on the merits for the same reason that his Title VII Claim fails.
E. TDHS is not a "person" for purposes of Plaintiff's Section 1983 Claim.
See e.g. Walker v. Thompson214 F.3d 615 62542 U.S.C. § 1983Will v. Mich. Dep't of State Police 491 U.S. 5871
To the extent that Plaintiff argues that he can assert age discrimination under a section 1981 theory, that argument is without merit. Laird v. Texas Commerce Bank-Odessa, 707 F.Supp. 938, 940 (W.D. Tex. 1988) (Section 1981 only applies to racial discrimination).
F. Plaintiff's Due Process Claim is dismissed on the merits.
In conclusory fashion, Plaintiff alleges in his Complaint that his "right to due process" was violated and that he suffered "illegal discrimination in violation of the 14th Amendment to the United States Constitution." Defendant responds that the "summary judgment evidence is clear that TDHS provided much process, including multiple investigations prompted by his requests and a full administrative hearing. . . ." In his response Plaintiff appears to argue that the OIG improperly investigated this matter and that they were mere "sham investigations."
Assuming that Plaintiff had a property right in his employment, federal due process required notice of the reasons for the proposed discharge and some opportunity to respond to the substance of the allegations before the discharge occurred. See Equia v. Tompkins, 756 F.2d 1130, 1139 (5th Cir. 1985); see also Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 545-46 (1985). Even an informal opportunity to "tell his side of the story" before termination is sufficient to satisfy the requirements of due process. Equia, 756 F.2d at 1139. Plaintiff merely provides a conclusory statement and his subjective belief that the OIG investigations were a "sham." In addition, Plaintiff was afforded the opportunity to appear before an Administrative Law Judge and was provided a full evidentiary hearing. Even if Plaintiff had a property right in his employment, his right to due process of law in the deprivation of that right was not violated.
III. CONCLUSION
Any Title VII allegations based on the 2003 Charge are time-barred. Plaintiff fails to establish a prima facie case of Title VII retaliation. Even if this court were to find that Plaintiff established a prima facie case of retaliation, TDHS has presented uncontroverted evidence demonstrating that it had legitimate, nondiscriminatory reasons for Plaintiff's termination. Plaintiff provides no competent summary judgment evidence to indicate that a biased investigation was conducted, or that the investigations were mere pretexts. Accordingly, even if this court were to find that Plaintiff established a prima facie case of retaliation, the court finds that Plaintiff did not present sufficient evidence to create a fact issue regarding the falsity of the reasons provided by TDHS. To the extent that Plaintiff seeks compensatory damages, punitive damages, or monetary awards from TDHS based on sections 1981 and 1983, those claims are barred by sovereign immunity. To the extent that Plaintiff seeks non-monetary relief, Plaintiff's section 1981 claim fails for the same reasons his Title VII claim fails. To the extent that Plaintiff's national origin discrimination claims are still asserted, such claims fail because Plaintiff has provided no competent summary judgment evidence that his race/national origin played any role in the decision to discharge him from his employment. To the extent that Plaintiff argues that he can assert age discrimination under a section 1981 theory, that argument is without merit. TDHS is not a "person" who can be sued under 42 U.S.C. § 1983. Even if Plaintiff had a property right in his employment, his right to due process of law in the deprivation of that right was not violated.
Inasmuch as this Order disposes of all Plaintiff's causes of action, the Clerk is directed to enter Judgment in favor of Defendant. Defendant is awarded costs, and shall file a bill of costs in the form required by the clerk within 14 days of judgment.