Opinion
Civil Action No. 3:OO-CV-0913-D
April 17, 2002
MEMORANDUM OPINION AND ORDER
Plaintiff Karen Jo Barrow ("Barrow") sues defendant Greenville Independent School District ("GISD") under 42 U.S.C. § 1983 alleging violations of federal constitutional rights and of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. She also brings causes of action arising under Title V of the Texas Civil Practice and Remedies Code and Article I, § ¶ of the Texas Constitution. Barrow asserts that the GISD Superintendent of Schools refused to consider her for the position of middle school Assistant Principal unless she placed her children — who attended a private Christian school — in public school. On GISD's motion for summary judgment, the court holds that Barrow has raised a genuine issue of material fact concerning whether GISD deprived her of federal rights under a custom and practice and declines to dismiss her § 1983 claims. The court holds that GISD is entitled to summary judgment dismissing her Title VII cause of action except to the extent she asserts a reasonable accommodation claim. The court dismisses Barrow's state-law claim for injunctive relief but otherwise denies the part of GISD's motion that pertains to her state-law causes of action.
I
During the period relevant to this lawsuit, Barrow was a classroom teacher employed by GISD who was eligible and qualified to hold the position of Assistant Principal. Her school age children were students at the Greenville Christian School, a private religious school. Barrow alleges that her federal constitutional rights were violated when Dr. Herman Smith ("Dr. Smith"), then the GISD Superintendent, refused to consider, interview, or recommend her to the GISD Board of Education for a school administrator position unless she enrolled her children in public school. In her first amended original complaint ("amended complaint"), Barrow alleges that GISD abridged the following federal constitutional rights: (1) the right under the First and Fourteenth Amendments to protection of family relationships, the right to direct one's children's educations, and the right of familial privacy (count I); (2) the liberty interest and due process right under the Fourteenth Amendment Due Process Clause to make decisions concerning familial relationships and practices, including the direction and control of one's children's education (count II); and (3) the right under the First Amendment Free Exercise Clause to the free exercise of one's religious faith by choosing to educate one's children in a religious educational institution according to that faith (count III). Barrow additionally asserts that she suffered an adverse employment action because of religious discrimination, in violation of Title VII (count V).
Barrow alleges that she was informed that "she would be required to remove her children from their private Christian education and to place them in a public school education within the independent school district where she resided." P. Am. Compl. at ¶ 6.29; see id. ¶ 6.32 ("in either the [GISD] or another independent school district but not in private education").
II
The court first considers whether GISD can be held liable under § 1983 for alleged violations of Barrow's constitutional rights. Barrow asserts that Dr. Smith stated that he would not consider her for promotion to an administrative position with GISD if she chose to educate her school-age children in a private school. She alleges that Dr. Smith employed this criterion with regularity in determining whom to interview, and whom to recommend, for available GISD administrative positions. Barrow also contends that for, purposes of assessing § 1983 liability against GISD under Monell v. Department of Social Services, 436 U.S. 658, 689 (1978), Dr. Smith was a policymaker with respect to decisions concerning whom to hire or whom to interview for administrative positions.
A
A governmental entity such as GISD can be sued and subjected to monetary damages and injunctive relief under 42 U.S.C. § 1983 only if its official policy or custom causes a person to be deprived of a federally protected right. See Board of County Comm'rs of Bryan County, Okla. v. Brown, 520 U.S. 397, 403 (1997); Monell, 436 U.S. at 694. A governmental entity cannot be liable for civil rights violations under a theory of respondeat superior or vicarious liability. See Monell, 436 U.S. at 694; see also Baskin v. Parker, 602 F.2d 1205, 1208 (5th Cir. 1979). Official policy is defined as:
1. A policy statement, ordinance, regulation, or decision that is officially adopted and promulgated by the [district] . . . or by an official to whom the [district] ha[s] delegated policy-making authority; or
2. A persistent, widespread practice of [district] officials or employees, which, although not authorized by officially adopted and promulgated policy, is so common and well settled as to constitute a custom that fairly represents [district] policy. Actual or constructive knowledge of such custom must be attributable to the governing body of the district or to an official to whom that body had delegated policy-making authority.Eugene v. Alief Indep. Sch. Dist., 65 F.3d 1299, 1304 (5th Cir. 1995) (alterations in original) (citing Johnson v. Moore, 958 F.2d 92, 94 (5th Cir. 1992)); see also Webster v. City of Houston, 735 F.2d 838, 841 (5th Cir. 1984) (en basic) (per curiam).
A plaintiff must identify the purported policy said to constitute a violation of her rights, show that the policy is attributable to the governmental entity itself, and establish that she incurred her injury because of the application of that specific policy. See Bennett v. City of Slidell, 728 F.2d 762, 767 (5th Cir. 1984) (en banc). She must demonstrate that the governmental entity, through its deliberate conduct, was the moving force behind the injury or harm suffered, and she must establish a direct causal link between the governmental entity's action and the deprivation of a federally protected right. Bryan County, 520 U.S. at 403-04.
Liability must rest on official policy, meaning the governmental entity's policy, not the policy of an individual official. Bennett, 728 F.2d at 769. The official complained of must possess
final authority to establish [school district] policy with respect to the action ordered. . . The official must also be responsible for establishing final government policy respecting such activity before the [school district] can be held liable. . . . [W]hether an official had final policymaking authority is a question of state law.Pembaur v. City of Cincinnati, 475 U.S. 469, 481-82 (1986).
Under Texas law, the final policymaking authority in an independent school district rests with the district's trustees. See Jett v. Dallas Indep. Sch. Dist., 7 F.3d 1241, 1245 (5th Cir. 1993). An employee, agency, or board of a governmental entity is not a policymaker unless the governmental entity, through its lawmakers, has delegated exclusive policymaking authority to that employee, agency, or board and cannot review the action or decision of the employee, agency, or board. See City of St. Louis v. Praprotnik, 485 U.S. 112, 130 (1988); Worsham v. City of Pasadena, 881 F.2d 1336, 1340-41 (5th Cir. 1989). In Jett the Fifth Circuit held that, under the Texas Education Code, the School Board, rather than the Superintendent, is the policymaking authority for the school district absent specific contrary arrangements. See Jett, 7 F.3d at 1245.
Although in her brief she intermixes and repeats several arguments to contend that Dr. Smith is a final policymaker whose decision is attributable to GISD, see P. Br. at 6-16, Barrow appears to advance reasoning that can be grouped and addressed in these three parts: (1) Dr. Smith was a final policymaker in July 1998 with respect to the hiring process for new administrators for GISD, under Tex. Educ. Code Ann. § 11.201(d)(3) (Vernon Supp. 2002); (2) the GISD Board merely rubber-stamped his recommendations, its power was limited merely to accepting or rejecting such recommendations, and it was no more than the titular decisionmaker; and (3) Dr. Smith's edicts and acts were final decisions of GISD because, although the Board retained the authority to create the position of Assistant Principal, it delegated to the Superintendent alone the final authority to select the person who would fill it. Barrow also argues that, even if Dr. Smith is not deemed a final policymaker, GISD is nevertheless liable under § 1983 because (1) the allegedly discriminatory acts occurred pursuant to "a persistent, widespread practice" of GISD employees, including Dr. Smith; and (2) because the GISD Board exhibited a "deliberate indifference" to Barrow's constitutional rights by inter alia failing to properly train and supervise Dr. Smith in the protection of these rights.
B
In advancing the argument that Dr. Smith functioned as a final policymaker in his capacity as GISD Superintendent, Barrow argues that the Fifth Circuit's holding in Jett does not apply to this case, in part because of subsequent changes to the Texas Education Code. See P. Br. at 25-27. After examining the present statutory scheme governing school district management, including Tex. Educ. Code Ann § 11.201(d)(3) (Vernon Supp. 2002), the court concludes that Jett's result also applies to the present case, even under the revised Texas Education Code. The court agrees with Judge Lindsay's decision in Texas State Teachers Ass'n v. Mesquite Independent School District, 2001 WL 1029514, at *3 (N.D. Tex. Aug. 23, 2001) (Lindsay, J.), that "[t]]he determination in Jett that the Board is the final policymaking authority was based on a number of provisions in the Education Code. There have been changes since the events at issue in Jett, but not so significant as to change the conclusion." Applying reasoning similar to that followed in Texas State Teachers Ass'n, the court holds that, under the revised Texas Education Code, the GISD Board — not the Superintendent — establishes policy concerning the eligibility requirements for a person to be interviewed for an administrator position. In fact, the summary judgment record indicates that the GISD Board considered an official policy requiring that applicants enroll their school-age children in the GISD, but ultimately decided against adopting such a policy. See D. App. 327-28, 330-37.
For an elaboration of the reasoning behind this conclusion, see Texas State Teachers Ass'n, 2001 WL 1029514 at *3-*4.
Given the Texas statutory scheme, Dr. Smith may be deemed a policymaker only if the Board had specifically delegated authority to him, the exercise of which was final and not subject to Board review. See Worsham, 881 F.2d at 1340-41. Based on the record evidence, the court concludes as a matter of law that the GISD did not delegate such final policymaking authority to Dr. Smith.
See Gros v. City of Grand Prairie, Tex., 181 F.3d 613, 616-17 (5th Cir. 1999).
Barrow's evidence that the Board "rubber stamped" job applicants recommended by the Superintendent, see, e.g., P. App. 2897-2945, does not establish such a delegation. "Except perhaps as a step towards overruling Monell and adopting the doctrine of respondeat superior, ad hoc searches for officials possessing such ' de facto' authority would serve primarily to foster needless unpredictability in the application of § 1983." Jett, 7 F.3d at 1247 n. 10 (quoting Praprotnik, 485 U.S. at 129). The court notes that many cases that Barrow cites in support of her contention that GISD may be held liable for Dr. Smith's actions because of its history of "rubber stamping" his employment recommendations deal with the standard for assessing liability under Title VII or the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621 et seq. See P. Br. 9-12 (citing Rios v. Rossotti, 252 F.3d 375, 382 (2001); Russell v. McKinney Hosp. Venture, 235 F.3d 219, 225 (2000)). Although, as Barrow argues, Dr. Smith may have been the de facto decisionmaker regarding which candidates were selected to be interviewed for GISD administrative positions, this practical circumstance does not elevate him to the status of policymaker for purposes of assessing liability under § 1983. As the Fifth Circuit stated in Jett:
[T]hat Superintendent Wright may have been delegated the final decision in the cases of protested individual employee transfers does not mean that he had or had been delegated the status of policymaker, much less final policymaker, respecting employee transfers. In Pembaur and Praprotnik the Court carefully distinguished between those having mere decisionmaking authority and those having policymaking authority . . . "'The fact that a particular official — even a policymaking official — has discretion in the exercise of particular functions does not, without more, give rise to municipal liability based on an exercise of that discretion.'"Jett, 7 F.3d at 1246-47 (quoting Pembauer, 475 U.S. at 48 1-82). Texas law and the facts present in the record conclusively indicate that, here, with respect to deciding which candidates to interview, Dr. Smith functioned as a decisionmaker rather than as a policymaker. Consequently, the court holds that Dr. Smith's edicts and acts of which Barrow complains did not constitute final policy of the GISD pursuant to a delegation of authority or otherwise.
In her brief, Barrow cites over 1200 pages of the record in support of this assertion, see P. Br. at 15 (citing P. App. 1070-1572, 2144-2896, 2897-2945), in violation of ND. Tex. Civ. R. 56.5(c). See Andrews v. CompUSA, Inc., 2002 WL 265089, at *3 (N.D. Tex. Feb. 21) (Fitzwater, J.), appeal docketed, No. 02-10364 (5th Cir. Mar. 26, 2002), and discussion infra.
C
Although Dr. Smith did not function as a policymaker, Barrow may continue with her § 1983 action against GISD if the summary judgment evidence raises a genuine issue of material fact concerning whether it was a "custom or practice" within the GISD to exclude from promotion to administrator any applicant who chose to educate her children in a private school. She must raise a genuine issue of material fact concerning the presence of "[a] persistent, widespread practice of [district] officials or employees, which, although not authorized by officially adopted and promulgated policy, is so common and well settled as to constitute a custom that fairly represents [district] policy." Eugene, 65 F.3d at 1304 (alterations in original).
Barrow makes one argument in her brief that reflects a misunderstanding of the parties' summary judgment burdens, She contends "[t]he District failed to meet its stringent summary judgment requirements by proving that, as a matter of law, it did not, in July of 1998, have a custom or practice of refusing to consider or interview job applicants for administrative positions who chose religious or private education for their children." P. Br. at 17. Because Barrow will have the burden of proving at trial that she was deprived of a constitutional right pursuant to a GISD policy or custom, GISD can meet its summary judgment obligation by pointing the court to the absence of evidence to support this element of her claim. See Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once it does so, the Barrow must then go beyond her pleadings and designate specific facts showing that there is a genuine issue for trial. See id. at 324; Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (per curiam). Summary judgment is mandatory if she fails to meet this burden. Little, 37 F.3d at 1076. Her failure to adduce proof on any essential element of her § 1983 claim renders all other facts immaterial. See Celotex Corp., 477 U.S. at 323. Accordingly, Barrow is mistaken in contending that to obtain summary judgment based on the absence of a policy or custom, it must meet the stringent summary judgment requirement of proving that, as a matter of law, it did not have one in July of 1998. Instead, it need only point the court to the absence of evidence of a policy or custom and the burden shifts to Barrow to introduce evidence that would permit a reasonable trier of fact to find in her favor on this element of her claim.
1
Barrow makes the conclusory assertion that "[t]he evidence of the District's custom or practice is established by the testimony of many of the Board members and administrators who have explained the bias and prejudice that the District has toward applicants for administrative positions who choose to educate their children in religious or private schools instead of the District's public schools." P. Br. at 17. This contention is followed by a string citation to five segments of the record, encompassing 1,828 pages. The balance of the argument cites " Id." once, cites four other parts of the record in groups of 11, 42, 87, and 72 pages, and does not otherwise cite the record. See P. Br. at 17-18. GISD has objected to global citations contained within Barrow's brief as placing an unreasonable burden on it and the court in evaluating Barrow's argument. See D. Rep. Br. at 8. Even excluding the citation to pages 116-1690 of the record — which is probably a typographical error — the citation directs the court to review 253 pages of the record, including the entirety of three depositions and of Barrow's personal affidavit. Even taking into account the broad scope of the matter that Barrow is attempting to prove, this far-reaching citation nevertheless clearly violates settled summary judgment jurisprudence and this court's local civil rules. This court is not required to "comb the record" in search of a genuine issue of material fact. "Rule 56 does not impose a duty on the district court to sift through the record in search of evidence to support a party's opposition to summary judgment." Doddy v. Oxy USA, Inc., 101 F.3d 448, 463 (5th Cir. 1996) (citing Jones v. Sheehan, Young Culp, P.C., 82 F.3d 1334, 1338 (5th Cir. 1996)). "Rule 56, therefore, saddles the non-movant with the duty to 'designate' the specific facts in the record that create genuine issues precluding summary judgment, and does not impose upon the district court a duty to survey the entire record in search of evidence to support a non-movant's opposition." Jones, 82 F.3d at 1338, N.D. Tex. Civ. R. 56.5(c) requires "[a] party whose . . . response is accompanied by an appendix [to] include in [her] brief citations to each page of the appendix that supports each assertion that the party makes concerning the summary judgment evidence." To the extent the court has inquired into the parts of the record that Barrow has cited, the court agrees with GISD's summary of the evidence, see D. Rep Br. at 8, and holds that the proof is insufficient to raise a genuine issue of material fact concerning the custom or practice of GISD.
In the course of making its objection, GISD explicitly notified Barrow of the likelihood of her typographical error. See id. Barrow has not made any attempt to clarify the citation in question.
2
Barrow also argues that the GISD Board took no action on learning that she had been subjected to religious discrimination, and thus was "deliberately indifferent" to the alleged constitutional violations that Dr. Smith implemented. See P. Br. at 20-23. She states that within days of learning that GISD had hired another person as Assistant Principal, she contacted a majority of the School Board members and informed them what Dr. Smith had said about District custom and policy of refusing to interview administrator applicants whose children were not enrolled in the District's schools and what he had done to discriminate against her. See P. Br. at 21 (citing P. App. 2952-2958). She contends that a majority of the Board knew that Dr. Smith had told her she was not considered for the position of Assistant Principal because she educated her children at Greenville Christian School and that she would have no future as a District administrator while she continued to educate them there instead of the GISD public schools. In support of this contention, she has adduced evidence that she spoke personally with Board President LaDayne Wilson and with Board members Randy Tarpley, Kevin Green, Steven Mitchell, and Janie Busby and informed them of Dr. Smith's alleged acts of discrimination. See P. App. 2952-54. Based on these contacts, Barrow argues that a majority of the Board was on notice of the Superintendent's interpretation of the District's policies, customs, and practices. Barrow argues that, afterwards, her counsel advised each Board member that she had been subjected to religious discrimination, the District employed counsel to investigate her claims, and the Board responded by doing nothing. See id. at 2954, 741-50. She cites the Board's response to the inquiry from the Equal Employment Opportunity Commission in which it said that one factor that would be considered in interviewing her was where she chose to educate her children. See P. App. 852. Barrow maintains that, even after District personnel gave sworn testimony concerning Dr. Smith's actions, the Board did nothing, and that it has not repudiated his conduct and statements, disciplined him for his actions and conduct toward Barrow, or modified its policies or adopted a policy that would prohibit such discrimination, as of the date she filed her summary judgment response.
Barrow's briefing on this point includes several citations that violate Rule 56.5(c). Despite this briefing error, she has properly designated sufficient record evidence to raise a genuine issue of material fact regarding deliberate indifference. The court need not, therefore, address the other arguments on which she relies to establish that her constitutional rights were violated pursuant to a GISD custom or practice. See id. at 18-19. Nor, for the same reason, must it address her argument that, even if summary judgment is granted with respect to a damages claim under § 1983, her suit for prospective declaratory and injunctive relief is entitled to proceed. See id. at 23-25.
The Fifth Circuit has held that where the final policy making body of a governmental entity acquires actual knowledge of an allegedly unconstitutional custom practiced by an employee, such knowledge may form the basis for § 1983 liability. "Actual knowledge maybe shown by such means as discussion at council meetings or receipt of written information." Bennett, 728 F.2d at 768. Barrow has adduced evidence of written and oral communications with Board members sufficient to support a reasonable finding that the Board had actual knowledge of Dr. Smith's conduct and rationale that Barrow challenges as unconstitutional. She has produced evidence that is sufficient to raise a genuine issue of material fact concerning whether the alleged constitutional violations occurred pursuant to a custom or practice of GISD. The court therefore denies GISD's motion for summary judgment with respect to Barrow's claims asserted through the procedural mechanism of § 1983.
In a related argument, Barrow asserts that the Board's failure to take action following notice of Dr. Smith's failure to promote her subjects GISD to liability for Dr. Smith's allegedly unconstitutional acts based on a "failure to train" theory. See P. Br. at 47-48. Barrow contends first that "[t]he district failed to move for summary judgment on Barrow's Fourteenth Amendment 'deliberate indifference' claim[.]" Id. at 47. The court disagrees. GISD's motion and brief clearly indicate that GISD has moved for summary judgment on all claims asserted under § 1983. See D. Mot. at 1. To hold a governmental entity liable under § 1983 based on a policy of improperly training or hiring employees, a plaintiff must prove that (1) the training or hiring procedures of the entity's policymaker were inadequate; (2) its policymaker was deliberately indifferent in adopting the hiring or training policy; and (3) the inadequate training and hiring policy directly caused the plaintiff's injury. City of Canton, Ohio v. Harris, 489 U.S. 378, 388-89 (1989); Baker v. Putnal, 75 F.3d 190, 200 (5th Cir. 1996). Regarding the period preceding Dr. Smith's July 1998 promotion decision, Barrow has introduced no evidence from which a reasonable trier of fact could find that GISD was deliberately indifferent as to its training or supervision of Dr. Smith concerning the religious rights of prospective job applicants. Concerning the period after which the Board became aware of the July 1998 promotion decision affecting Barrow, there is no genuine issue of material fact concerning whether the allegedly inadequate training policy directly caused Barrow's injury. Moreover, given the court's holding concerning the qualified nature of the religious rights that Barrow has asserted, see Barrow v. Greenville Independent School District, 2002 WL 255484, at *2-*5 (N.D. Tex. Feb. 20) (Fitzwater, J.), appeal docketed, No. 02-10351 (5th Cir. Mar. 22, 2002), Barrow has not adduced evidence that demonstrates a genuine issue of material fact as to whether the training procedures of GISD regarding the protection of the religious rights of prospective job applicants were inadequate during any time period.
GISD moved for summary judgment based on the absence of evidence of a GISD policy, custom, or practice. The court thereafter addressed certain substantive issues in the context of Dr. Smith's motion for summary judgment based on qualified immunity. See Barrow, 2002 WL 255484. The court does not intend, by denying summary judgment on the narrow ground that GISD presents in its motion, to vary any of the reasoning followed in Barrow.
III
Barrow sues GISD under Title VII asserting that she was subjected to disparate treatment because of her religion.A
Barrow may prove her Title VII claim based on direct evidence or by using the indirect McDonnell Douglas method of proof. See LaPierre v. Benson Nissan, Inc., 86 F.3d 444, 448 (5th Cir. 1996) (race discrimination case). She contends that Dr. Smith's comments concerning her request for promotion provide direct evidence of intentional discrimination. The court disagrees. "Direct evidence is evidence which, if believed, proves the fact [of intentional discrimination] without inference or presumption." Portis v. First Nat'l Bank, 34 F.3d 325, 328-29 (5th Cir. 1994) (quoting Brown v. East Miss. Elec. Power Ass'n, 989 F.2d 858, 861 (5th Cir. 1993)). "In the context of Title VII, direct evidence includes any statement or written document showing a discriminatory motive on its face." Id. at 329. Viewing all evidence in the light most favorable to Barrow as the nonmovant, the court holds that she has presented proof only that Dr. Smith sought to discourage or prevent GISD administrators from enrolling their school-age children in any private school, whatever its religious affiliation. See, e.g., P. App. 685-96, 2952. Barrow's own deposition testimony confirms this view of Dr. Smith's motives. See D. App. 274-78, 284-86, 292-94 (reproducing Barrow's testimony stating her view that, under Dr. Smith's requirements, she would remain ineligible for promotion to middle school Assistant Principal so long as her school-age children attended any private school, or engaged in any type of schooling other than within the GISD.
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
B
Because the testimony that Barrow cites does not constitute sufficient direct evidence of intent to discriminate based on religion, she must rely on the familiar burden-shifting framework established by the Supreme Court in McDonnell Douglas. She first must establish a prima facie case of discrimination. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000). Once she meets this burden, GISD is obligated to produce a legitimate, nondiscriminatory reason for the employment decision at issue. See id. This is a burden of production, not persuasion, and involves no credibility assessment. See id. Once GISD meets this production burden, the presumption of discrimination disappears. Id. at 142-43. Barrow must prove by a preponderance of the evidence that the legitimate reasons offered are not the true reasons but are a pretext for discrimination. Id. "[T]he plaintiff may attempt to establish that [s]he was the victim of intentional discrimination "by showing that the employer's proffered explanation is unworthy of credence.'" Id. (quoting Tex. Dep't of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981)). "[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." Id. at 188. "[I]t is permissible for the trier of fact to infer the ultimate fact of discrimination from the falsity of the employer's explanation." Id. at 147. "Proof that the defendant's explanation is unworthy of credence is simply one form of circumstantial evidence that is probative of intentional discrimination, and it may be quite persuasive." Id. At the summary judgment stage, Barrow need only raise a genuine issue of material fact. See Tutton v. Garland Indep. Sch. Dist., 733 F. Supp. 1113, 1116 (N.D. Tex. 1990) (Fitzwater, J.).
C
The court must first decide whether Barrow has established a prima facie case. To do so under Title VII, Barrow must demonstrate that (1) she was not promoted, (2) she was qualified for the position she sought, (3) she was within the protected class at the time of the failure to promote, and (4) either the position she sought was filled by someone outside the protected class or she was otherwise not promoted because of her religion. See Rutherford v. Harris County, Tex., 197 F.3d 173, 179-80 (5th Cir. 1999) (sex discrimination case) (citing Bennett v. Total Minatome Corp., 138 F.3d 1053, 1060 (5th Cir. 1998)). In its brief in support of its motion for summary judgment, GISD does not argue that Barrow has failed to establish a prima facie case of disparate treatment, but instead assumes arguendo that Barrow has. See D. Br. at 19. The court will do so as well.
D
Because Barrow has satisfied her obligation to present a prima facie case, the burden has shifted to GISD to produce evidence of a legitimate, nondiscriminatory reason for the employment decision at issue. GISD has met its burden of production by adducing evidence that Dr. Smith's reason for failing to promote Barrow was her choice to educate her children in private school as opposed to public school, not her choice of a religious school in particular. See, e.g., D. App. 211-12, 293. GISD has also produced evidence that Barrow did not receive a promotion because she did not apply for the Assistant Principal position. See id. at 220-21.
E
Because GISD has met its burden of production, the inference of unlawful discrimination has disappeared, and Barrow is obligated to introduce evidence that would permit a reasonable trier of fact to find pretext. The court concludes that she has not.
1
Although employees are protected under Title VII from discrimination based on their religious faith, the statute affords no protection from disparate treatment that is based on an employee's desire to educate her children in a private school, even if the school is sectarian. Barrow's deposition testimony confirms that, during a July 30, 1998 meeting, Dr. Smith told her that she would remain ineligible for promotion to middle school Assistant Principal so long as her school-age children attended any private school, or engaged in any type of schooling other than within the GISD. See D. App. 274-78, 284-86, 292-94. Barrow offers no evidence that would permit a reasonable trier of fact to find that Dr. Smith intended to do anything more than invoke a patronage requirement in spite of, rather than because of, her desire to give her children a Christian-based education.
2
Viewing the evidence in the light most favorable to Barrow as the nonmovant, a reasonable trier of fact could find that her failure to comply with any formal application requirement was due to her having received direct communication from Dr. Smith and others associated with the GISD administration that her application would be unsuccessful if she continued to enroll her children in private school. See, e.g., P. App. 2950, 2958-60. Even assuming, however, that Barrow has adduced evidence of pretext relating to her alleged failure to apply for the position, the record still would not permit a reasonable inference of discrimination based on religion in view of the summary judgment evidence that Dr. Smith intended to do no more than impose a patronage requirement devoid of any intent to discriminate based on Barrow's Christian religion or the exercise of her faith. See Reeves, 540 U.S. at 148 ("Certainly there will be instances where, although the plaintiff has established a prima facie case and set forth sufficient evidence to reject the defendant's explanation, no rational factfinder could conclude that the action was discriminatory. For instance, an employer would be entitled to judgment as a matter of law 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 had occurred."); see also Vadie v. Miss. State Univ., 218 F.3d 365, 374 n. 23 (5th Cir. 2000) (quoting Reeves, 540 U.S. at 148), cert. denied, 531 U.S. 1113 (2001).
The citations on which Barrow relies to support her arguments under the rubric, "The District's Excuse Is a Pretext for Discrimination[,]" see P. Br. 39-40, violate Rule 56.5(c), see supra n. 4. The citations that she offers as proof of discrete events and conversations direct the court to review segments of the record that consist of groups of 41, 49, 57, 67, 110, 87, and 52 pages, respectively. The final two citations, of one and two pages, respectively, refer to Barrow's affidavit account of her July 30, 1998 meeting with Dr. Smith, and the court has considered and addressed the evidence relating to this meeting. See supra § III(E)(1).
Because Barrow has not adduced evidence upon which a reasonable trier of fact could conclude that Dr. Smith's failure to promote her was based on her religion or her choice of specifically religious education for children, the court grants summary judgment in favor of GISD with respect to Barrow's claim of disparate treatment.
IV
Barrow also asserts that GISD employment policies have subjected her, and people similarly situated, to disparate impact, in violation of Title VII. See P. Br. at 44-46. To establish a prima facie case of disparate impact, Barrow must show that facially neutral employment standards operate more harshly on one group than another. See Johnson v. Uncle Ben's, Inc., 965 F.2d 1363, 1367 (5th Cir. 1992). This initial burden includes proof of a specific practice or set of practices resulting in a significant disparity between the groups. Id. Statistical disparities between the relevant groups are not sufficient. Id. A plaintiff must offer evidence "'isolating and identifying the specific employment practices that are allegedly responsible for any observed statistical disparities.'" Id. (quoting Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 655 (1989)).
Barrow has not furnished evidence of any observed statistical disparities caused by GISD's alleged practice of refusing to promote to administrative positions individuals who choose to educate their children in private school. At most, she has adduced evidence that this requirement was applied to her twice, and to Pope once. See P. App. 2948, 2983-84. In response, GISD has introduced evidence that while employed by GISD, Assistant Superintendent Mike Cardwell ("Cardwell") educated his children for twelve years in private school, and during that time was promoted to Assistant Superintendent and served for a time as Interim Superintendent. See D. App. 123-29. Taken as a whole, the evidence on which Barrow relies does not satisfy her initial burden of proving that GISD's employment practices have resulted in a significant disparity between Christians and non-Christians, or religious believers and nonbelievers. Consequently, the court grants summary judgment in favor of GISD with respect to Barrow's disparate impact claim.
Cardwell's testimony reflects that his children attended the Greenville Christian School — the same school to which Barrow desired to send her children — and that they had graduated before Dr. Smith's tenure as Superintendent. See D. App. 123-24.
V
GISD's motion for summary judgment and brief in support demonstrate that GISD has moved for summary judgment only as to Barrow's disparate treatment and disparate impact claims under Title VII. See D. Mot. at 1 ("Plaintiff's Title VII claim fails because she cannot produce any evidence to establish that any individual involved in the events in question 'intended' to discriminate against her because of her religion, Christian; nor can she show any facially neutral employment practice of the District that resulted in a burden imposed on her religious beliefs."); see also id. at 2 ("Plaintiff cannot meet her burden of proof in any of her 1983 claims or on her Title VII claim (whether she argues it as a disparate treatment or disparate impact claim)."). In her brief in support of her response, however, Barrow argues that GISD is liable under Title VII on the alternate theory that GISD's hiring standards fail to provide "reasonable accommodation" of her religious practices. See P. Br. at 32. She also cites the Fifth Circuit standard for establishing a prima facie case on a "reasonable accommodation" theory. Id. at 32 n. 42 (citing Jenkins v. Louisiana, 874 F.2d 992, 995 (5th Cir. 1985)). In its reply brief, GISD does not argue that Barrow has failed to plead this theory in her amended complaint or that she failed to disclose it as a basis for her Title VII claim in response to a proper discovery request. Because the court may not grant summary judgment on a ground that is not included in a summary judgment motion, see John Deere Co. v. American National Bank, Stafford, 809 F.2d 1190, 1192 (5th Cir. 1987), it concludes that Barrow's reasonable accommodation claim remains in the case.
Because the notice pleading standard of Fed.R.Civ.P. 8(a) applies, and since she explicitly alleges a Title VII claim, this argument may have lacked merit had it been made.
Before GISD filed its motion for summary judgment, Barrow sought leave to file a second amended complaint. The court denied the motion without prejudice due to the pendency of a motion for summary judgment that Dr. Smith had filed. See Dec. 4, 2001 Order at 1-3. It permitted her to move anew for such relief after the court decided the summary judgment motion, Id. at 1. Barrow's proposed second amended complaint specifically alleges that GISD did not reasonably accommodate her religious beliefs and practices. See P. Prop. 2d Am. Compl. ¶ 11.10. If allowed as a pleading, it would provide GISD fair notice of her intent to assert such a claim. Under these circumstances, the court grants Barrow leave to amend to file a second amended complaint to assert a reasonable accommodation claim, which would then be the sole remaining Title VII claim against GISD.
VI
In its motion for summary judgment, GISD asserts a simple basis for dismissal of Barrow's state-law claims. It maintains that her "pendent state law claims should be dismissed without prejudice, upon dismissal of the substantive federal claims against the District[.]" D. Mot. at 1. Because the court has held that Barrow may proceed with substantive federal claims under § 1983 and Title VII, GISD is not entitled to dismissal on this basis.
GISD's motion and brief indicate that it seeks, in the alternative, summary judgment solely on Barrow's claims for injunctive relief under Texas law. See id. at 1; D. Br. at 24. Under Texas law, "[a] successful applicant for [permanent] injunctive relief must demonstrate the following four grounds for relief: 1) the existence of a wrongful act; 2) the existence of imminent harm; 3) the existence of irreparable injury; and 4) the absence of an adequate remedy at law." Priest v. Tex. Animal Health Comm'n, 780 S.W.2d 874, 875 (Tex.App. 1989, no writ) (citing Frey v. DeCordova Bend Estates Owners Ass'n, 647 S.W.2d 246, 248 (Tex. 1983)). GISD contends inter alia that Barrow has failed to demonstrate the existence of imminent harm if an injunction is not granted. Barrow acknowledges that in August 2001 she was promoted to Assistant Principal of Greenville High School. See P. Br. 19. She has failed to adduce evidence that demonstrates any potential for imminent harm from continuing violations of state law by GISD. Therefore, the court grants GISD's motion for summary judgment with respect to Barrow's state-law claim for injunctive relief.
VII
In a prior opinion, the court dismissed Barrow's action against Dr. Smith, individually, based on qualified immunity and entered a Rule 54(b) final judgment. See Barrow v. Greenville Indep. Sch. Dist., 2002 WL 255484, at *6 (N.D. Tex. Feb. 20, 2002) (Fitzwater, J.), appeal docketed, No. 02-10351 (5th Cir. Mar. 22, 2002). Barrow has appealed the court's judgment, and the parties have requested that the trial of this case be stayed during the pendency of the appeal. Accordingly, within 20 days of the date this memorandum opinion and order is filed, the parties must advise the court by joint written submission whether they request that Barrow's action against GISD be abated pending the outcome of the appeal. If so, the court will abate this part of the case and statistically close it until the appeal is completed; otherwise, the court will conduct such further proceedings as are consistent with the interests of justice.
* * *
The court grants in part and denies in part GISD's October 9, 2001 motion for summary judgment.