Summary
dismissing discrete unrelated prior claims as time-barred
Summary of this case from Blackman v. City of DallasOpinion
CIVIL ACTION NO. 3:00-CV-0075-P
January 23, 2001
MEMORANDUM OPINION AND ORDER
Now before the Court is Defendant's Motion for Summary Judgment, with supporting brief and appendix, filed November 1, 2000; Plaintiff's Response to the summary judgment motion, filed December 15, 2000, and Defendant's reply brief, filed December 30, 2000. For the reasons set forth below, the Court concludes that Defendant's Motion for Summary Judgment should be GRANTED as to all of Plaintiff's claims.
BACKGROUND
Plaintiff Neely Blackman brings this action against his current employer, alleging racial discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and retaliation under 42 U.S.C. § 1981.
The following are the relevant facts of the case, which are essentially undisputed. Plaintiff Blackman, an African-American, has been employed by the City of Dallas since April 4, 1990. He is currently employed in the City's Code Enforcement Department in a non-managerial position as an inspector. Plf. App. at 4. Blackman alleges that he was discriminated against because of his race in violation of Title VII when (1) the City of Dallas appointed white employees to serve in interim management positions because of their race, giving them an unfair advantage in the promotion process; (2) white employees were improperly given extra points on their interview scores because of their race, also giving them an unfair advantage in the promotion process; and (3) his name was inappropriately removed from the Civil Service list of eligible applicants for the Code Enforcement Division Manager 57 promotion. Plf. Br. at 7; Plf. App. at 5, 142. Blackman further alleges that the City's retaliatory acts violated his civil rights under § 1981 when (1) he was investigated by the Public Integrity Unit of the Dallas Police Department; and (2) his name was improperly removed from the Civil Service list of eligible applicants for the Manager 57 position. Plf. Br. at 11; Plf. App. at 49, 142.
In response, the City argues that (i) Blackman's Title VII claims are barred by the limitations period; (ii) Blackman failed to exhaust his administrative remedies under Title VII; (iii) he has not articulated a prima facie case under Title VII; (iv) the City had a legitimate, non-discriminatory reason for not promoting Blackman; and (v) there is no evidence of intentional discrimination or pretext. Furthermore, in response to Blackman's § 1981 claims, the City asserts that (i) Blackman cannot bring § 1981 claims against the City; (ii) his § 1981 claims are barred by the limitations period; and (iii) Blackman has not established a prima facie case for retaliation under § 1981. Each of the City's grounds for summary judgment are addressed below.
DISCUSSION
I. SUMMARY JUDGMENT STANDARD
Summary judgment shall be rendered when the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). All evidence and the reasonable inferences to be drawn therefrom must be viewed in the light most favorable to the party opposing the motion. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962). The moving party bears the burden of informing the district court of the basis for its belief that there is an absence of a genuine issue for trial, and of identifying those portions of the record that demonstrate such an absence. Celotex, 417 U.S. at 323.
Once the moving party has made an initial showing, the party opposing the motion must come forward with competent summary judgment evidence of the existence of a genuine fact issue. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The party defending against the motion for summary judgment cannot defeat the motion unless he provides specific facts that show the case presents a genuine issue of material fact, such that a reasonable jury might return a verdict in his favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Mere assertions of a factual dispute unsupported by probative evidence will not prevent summary judgment. Id. at 248-50; Abbot v. Equity Group, Inc., 2 F.3d 613, 619 (5th Cir. 1993). In other words, conclusory statements, speculation and unsubstantiated assertions will not suffice to defeat a motion for summary judgment. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1429 (5th Cir. 1996) (en bane). If the nonmoving party fails to make a showing sufficient to establish the existence of an element essential to its case, and on which he bears the burden of proof at trial, summary judgment must be granted. Celotex, 477 U.S. at 322-23.
Finally, the Court has no duty to search the record for triable issues. Guarino v. Brookfield Township Trustees, 980 F.2d 399, 403 (6th Cir. 1992). The Court need only rely on the portions of submitted documents to which the non-moving party directs. Id.
II. TITLE VII CLAIMS
A. Whether Title VII Claims are Time-barred
In Texas, a Title VII plaintiff must file a charge of discrimination with the EEOC within 300 days after learning of the conduct alleged. See 42 U.S.C. § 2000e-5(e)(1); Huckabay v. Moore, 142 F.3d 233, 238 (5th Cir. 1998). Under the "continuing violation" doctrine, a limited, equitable exception to the limitations period exists when the unlawful employment practice manifests itself over time, rather than as a series of discrete acts. Id. When applying the continuing violation theory, the focus is on what event, in fairness and logic, should have alerted the average lay person to act to protect his rights. See id.
Blackman points to numerous incidents, sometimes specifically and sometimes generally, in which he was allegedly the victim of racial discrimination. Def. App. at 7. Specifically, Blackman alleges that from the early nineties to 1997, five white employees, Vicki Rader, Suzie Hughes, Preston Deforrer, Gary Middleton, and Larry Holland, were appointed to interim management positions because of their race. Def. App. at 7; Plf. Br. at 10. Blackman states that he "knew" the appointments were "illegal and based on race" between 1996 and June 1997, when Middleton was selected as interim manager. Def. App. at 7-8. Thereafter, Middleton's appointment was made permanent on April 9, 1998. Likewise, Holland's interim appointment on July 4, 1997, was made permanent on October 12, 1998. Believing that white employees placed in interim positions were receiving an unfair advantage in the promotion process, Blackman filed a complaint with the EEOC on January 19, 1999, and then this lawsuit on January 13, 2000.
The City argues that the applicable statute of limitations bars Blackman from asserting his Title VII claims for interim appointments occurring before March 25, 1998. Messer v. Meno, 130 F.3d 130, 134 (5th Cir.), cert. denied, 119 S.Ct. 794 (1999) (three-hundred day statute of limitations for Title VII claims). Plaintiff responds that the limitations period should run from the time of the permanent appointment of the promotions, April 9, 1998 for Middleton and October 12, 1998 for Holland.
While otherwise untimely claims could, at least in theory, be saved pursuant to the "continuing violation" doctrine, the Court observes that failure to promote cannot constitute a continuing violation under prevailing precedent. Huckabay v. Moore, 142 F.3d 233, 240 (5th Cir. 1998). The City's failure to promote Blackman is an isolated occurrence that should have put Blackman on notice that a claim had accrued. Id. Indeed, Blackman admits that he discovered at the time of Middleton's appointment to interim manager between 1996 and June 1997 that there was a "pattern" of discrimination against blacks. Def. App. at 7-8. Blackman even acted on his knowledge of such a "pattern" by complaining to the City in August or September of 1997. Def. App. at 8. It is clear that Blackman was put on notice that action could be taken to protect his rights at the time of Middleton's interim appointment, some time between 1996 and June 1997. Def. App. at 7-8.
In his deposition testimony, Blackman states:
Q. At the time that they were appointed to those interim positions, did you know that, "Okay. Something's going on here with the fact that this white person who isn't as qualified as me is being placed in an interim position"?
A. I didn't discover the pattern until after they had started doing it. They always stated that everything [sic] going to be done fair and honest and aboveboard. They give you that speech, but after the pattern start [sic] portraying itself, then I began to become aware of it.
Q. So maybe you weren't aware of it when Vicki Rader was appointed, but by the time Gary Middleton — first it was Vicki Rader, then Suzie Hughes, then Preston Deforrer, and then Gary Middleton. By the time Gary Middleton had been appointed, you knew that —
A: Oh, yeah, I knew by then that what they were doing was illegal.
Q: It was based on race?
A: Right, it was based on race.
Def. App. at 7-8.
Therefore, as a general matter, the Court finds that any Title VII claims arising before March 25, 1998, are indeed time-barred. The five white employees allegedly appointed to interim management positions because of their race were all selected on or before July 4, 1997. In addition, Plaintiff's retaliation claims arose on October 16, 1997. Accordingly, the City's motion for summary judgment is GRANTED on Blackman's Title VII claims predating March 25, 1998.
Plaintiff claims that the City initiated an investigation against him in retaliation for his complaints about the department's employment practices. Def. App. at 55. The Public Integrity Unit of the Dallas Police Department investigated Blackman for code violations on properties. Cmplt. at 2. The allegedly improper investigation was requested on October 16, 1997, and was closed on December 4, 1997, finding no wrongdoing on Blackman's part. Def. App. at 55, 148, 162-63.
B. Whether Blackman Failed to Exhaust His Administrative Remedies
As stated previously, in Texas, a Title VII plaintiff must file a charge of discrimination with the EEOC within 300 days after learning of the conduct alleged. 42 U.S.C. § 2000e-5(e)(1); Huckabay v. Moore, 142 F.3d 233, 238 (5th Cir. 1998). Plaintiff alleges that there was a pattern of adjusting scores of non-black people to get them in positions for which they were not the most qualified, causing him to always be the runner-up. Def. App. at 5. Specifically, Blackman asserts that Gary Middleton's interview scores were adjusted as a reward for serving in an interim capacity, thereby allowing him to be promoted to a permanent position in management. Def. App. at 30-31.
In response, the City claims that Blackman has failed to exhaust his administrative remedies because he did not raise the issue of Middleton's promotion or the improper award of points based on race in his EEOC complaint. It is uncontested that Blackman's EEOC complaint claims that he suffered race discrimination when Larry Holland was chosen over him for a promotion. Def. App. at 179. Though Plaintiff specifically mentions Holland's name in the EEOC complaint, the statement raises the general issue of racial discrimination in the promotion process. This would logically include the improper adjustment of scores based on race. Therefore, Blackman's claim that white employees' interview scores were improperly adjusted on the basis of race is not precluded for failure to exhaust the EEOC's administrative remedies. Accordingly, the City's motion for summary judgment as to this claim is DENIED.
C. Blackman's Title VII Claims
1. Legal Standard Under Title VII
Title VII of the Civil Rights Act of 1964 makes it "an unlawful employment practice for an employer . . . to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment because of [his] . . . race." 42 U.S.C. § 2000e-2(a)(1). The U.S. Supreme Court originally set out the framework for analyzing Title VII employment discrimination claims in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973), and elaborated upon this framework in St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993). Under the McDonnell Douglas/St. Mary's scheme, Blackman must first establish a prima facie case of discrimination. See St. Mary's, 509 U.S. at 506. Such a prima facie case is established if Blackman provides evidence that he (1) was a member of a protected group; (2) was qualified for his position; (3) suffered an adverse employment action; and (4) was replaced by a similarly qualified white employee. See Ward v. Bechtel Corp., 102 F.3d 199, 202 (5th Cir. 1997).
If Blackman establishes a prima facie case, he will have raised a rebuttable presumption of discrimination and shifted the burden to the City to articulate a legitimate, non-discriminatory reason for his termination. See St. Mary's, 509 U.S. at 506. If the City satisfies this burden of production, Blackman must present evidence that the City's proffered reason is a pretext for discrimination and that his termination was in fact informed by discriminatory motives. See id. at 507; Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-55 (1981). Thus, the City's successful rebuttal requires Blackman to present more specific evidence supporting his allegation of discriminatory intent. See Williams v. Time Warner Operation, Inc., 98 F.3d 179, 181 (5th Cir. 1996). The ultimate burden of persuasion at trial, of course, rests squarely upon Blackman. St. Mary's, 509 U.S. at 508; Marcantel v. Louisiana Dep't of Transp. Dev., 37 F.3d 197, 200 (5th Cir. 1994).
2. Application of the Law to the Facts
a. Race Discrimination Claim under Title VII
The City argues that Plaintiff's claim that white employees' interview scores were adjusted to give them positions for which he was the most qualified fails as a matter of law because Blackman can neither establish a prima facie case of discrimination, nor demonstrate that the City's proffered reasons were pretextual. As an initial matter, the Court notes that Plaintiff has entirely failed to offer any arguments to support his allegation that white employees' interview scores were improperly adjusted. Plaintiff simply repeats verbatim his earlier arguments that white employees were unfairly placed in interim positions.
As set out above, for Blackman to articulate a prima facie case of race discrimination in this case, he must show that he: (i) belongs to a protected class, African-American; (ii) sought and was qualified for the job; (iii) was rejected for that position; and (iv) was replaced by someone outside of the protected class, not African-American. The Court finds that Blackman's Title VII claim regarding employees' interview scores does not survive summary judgment scrutiny for two reasons.
First, Blackman has not established a prima facie case that the practice of adjusting scores of interviewees was based on racial discrimination. Specifically, Blackman has failed to prove the second element, which requires a showing that the plaintiff sought and was qualified for the job. Blackman alleges generally that white employees were given additional points on their interview scores; however, Blackman provides evidence that only one white employee received extra points — Gary Middleton. When addressing the promotion that Middleton received, Blackman readily admits that he was not on the Civil Service list of eligibles for Middleton's position, and therefore Blackman did not apply for it. Def. App. at 31. Thus, Blackman has failed to prove the essential elements necessary for his Title VII discrimination claim.
Second, assuming, arguendo, that Plaintiff had articulated a prima facie case, Blackman fails to provide any evidence that employees' interview scores were adjusted in a discriminatory manner. In fact, Blackman admits that additional points were added to two employees' interview scores, Gary Middleton, who is white, and Ronald Jacobs, who is black, because of the experience they derived from their interim positions. Def. App. at 31. Thus, the adjustment of interview scores simply evidences the practice of awarding points in recognition of experience gained while serving in an interim capacity. Essentially, Blackman's claim that employees' scores were improperly adjusted is simply a reiteration of his claim that white employees' were placed in interim positions, giving them an unfair advantage in the promotion process. As discussed previously, the latter claim has already been barred by the limitations period.
Blackman acknowledges that Ronald Jacobs is African-American. Def. App. at 31. Thus, the City's alleged practice of awarding points for serving in an interim position has benefitted one white employee and one black employee. This is further evidence that the adjusting of interview scores was not discriminatory.
Accordingly, summary judgment is GRANTED with respect to Plaintiff's claim that white employees' interview scores were improperly adjusted, giving them an unfair advantage in the promotion process.
b. Retaliation Claim under Title VII
Title VII of the Civil Rights Act of 1964 makes it "an unlawful employment practice for an employer to discriminate against any of his employees" who have either availed themselves of Title VII's protections or assisted others in so doing. 42 U.S.C. § 2000e-3(a) (1994). The Fifth Circuit applies the McDonnell Douglas burden-shifting framework to claims of unlawful retaliation under Title VII. See Byers v. Dallas Morning News, Inc., 209 F.3d 419, 427 (5th Cir. 2000). To make out a prima facie case for retaliation, Blackman must prove that (1) he engaged in a protected Title VII activity; (2) he suffered an adverse employment decision; and (3) a causal nexus between the protected activity and the adverse employment decision exists. See id.
The City of Dallas claims that Blackman has failed to establish a prima facie case for retaliation under Title VII. Specifically, the City asserts that Blackman cannot establish an adverse employment action, nor can he show a causal connection exists between his complaints about the department's employment practices and his name allegedly being removed from the Civil Service list of eligibles. A plaintiff asserting a retaliation claim must establish a "but for" causal nexus between the protected activity and the adverse employment action. Shirley v. Chrysler First, Inc., 970 F.2d 39, 42 (5th Cir. 1992). In other words, Blackman must prove that he would have been on the list of eligibles but for his complaints.
The City provides evidence that Blackman was on the roster of eligible candidates for the Division Manager 57 position. Def. App. at 152, 158. This was the final roster used by Code Enforcement in filling the Manager 57 position. Def. App. at 152. The City further submits that the Civil Service Department never submitted a roster of applicants for the management position that did not have Blackman's name on it. Def. App. at 152. In response, Blackman argues that Ramiro Lopez, the then-Assistant Director of the Code Enforcement Department, told him "that no one would be promoted who filed grievances against [Lopez]." Plf. Br. at 14. He also claims that Code Enforcement filled the Manager 57 position using a list of eligibles from which his name had been removed as a retaliatory act. Such statements, however, constitute nothing more than unsubstantiated allegations. Blackman provides no evidence that the Code Enforcement Department used a roster of applicants to fill the Manager 57 position that did not include his name or that his name had been improperly removed from any Civil Service list of eligibles.
Thus, Blackman has failed to establish that he suffered an adverse employment decision. Accordingly, the Court finds that Plaintiff has not presented sufficient evidence to establish a prima facie case of unlawful retaliation.
Even if Blackman had proven he suffered an adverse employment action, he provides no evidence of a causal connection between his complaints about the department's employment practices and the alleged adverse employment decision.
III. SECTION 1981 RETALIATION CLAIMS
A. Whether Claims Can Be Brought Against the City
Defendant argues that Plaintiff cannot assert a § 1981 claim because § 1983 provides the exclusive remedy for a violation by a state actor of an individual plaintiff's constitutional rights. For the reasons stated below, the Court agrees with Defendant.
The Supreme Court in Jett v. Dallas Independent School District analyzed whether there can be a cause of action for damages under § 1981. See Jett, 491 U.S. 701, 733 (1989). Specifically, in declining to find a cause of action, the Court held that "the express `action of law' provided by § 1983 for the `deprivation of any rights, privileges, or immunities secured by the Constitution and laws,' provides the exclusive federal remedy for the violation of the rights guaranteed by § 1981 when the claim is pressed against the state actor." Id. at 735-36. Although Congress later amended § 1981 by the Civil Rights Act of 1991, which added subsection (c), this Court does not find that the amendment affected the Supreme Court's ruling in Jett. See, e.g., Dennis v. County of Fairfax, 55 F.3d 151, 156 n. 1 (4th Cir. 1995); Jackson v. Dallas Indep. Sch. Dist., No. Civ. A. 3:98-CV-1079-D, 1999 WL 58846, * 2 (N.D. Tex. Feb. 1, 1999) (declining to find that the addition of § 1981(c) overruled the holding of Jett because the language of subsection (c) does not grant an individual an express cause of action against a state official); Wallace v. Dallas Indep. Sch. Dist., No. Civ. A. 3:97-CV-2820-L, 2000 WL 575219, *8 (N.D. Tex. May 11, 2000); Garrett v. Dallas Public Schools, No. Civ. A. 3:98-CV-3016-G, 1999 WL 1212859, *2 (N.D. Tex. Dec 16, 1999).
Section 1981(c) states, "[t]he rights protected by this section are protected against impairment by nongovernmental discrimination and impairment under color of state law." 42 U.S.C. § 1981(c).
The Fifth Circuit has not addressed the issue of whether the addition of subsection (c) affects the Supreme Court's ruling in Jett that § 1983 is the exclusive federal damages remedy for a violation by a state actor of the "right to make and enforce contracts" stated in § 1981. Although there is a current split in some of the circuit courts, as stated above, this Court is of the opinion that the well-reasoned view concludes that the amendment does not overrule Jett. Cf. Dennis, 55 F.3d at 156 n. 1 with Federation of African Am. Contractors, et al. v. City of Oakland, 96 F.3d 1204, 1209-13 (9th Cir. 1996).
Thus, the Court agrees with the City and finds that § 1983 provides the exclusive remedy for a violation by a state actor of a person's rights under § 1981. Accordingly, no independent or stand alone cause of action may be brought under § 1981. A claim for a violation of § 1981 must be brought under § 1983.
Because Blackman may not assert a claim for relief under 42 U.S.C. § 1981 alone, and he has not asserted claims based on 42 U.S.C. § 1983, his retaliation claims must be dismissed. Therefore, the Court GRANTS summary judgment on Plaintiff's § 1981 claims.
In his Response Brief, Plaintiff merely reiterates verbatim the case law cited in Defendant's Motion for Summary Judgment. Blackman does not provide one argument in support of his position that the § 1981 claims can be brought against the City.
B. Whether Claims Are Time-barred
Assuming, arguendo, that Blackman had asserted his retaliation claims under § 1983, such claims would still be barred by the statute of limitations for such claims. The applicable statute of limitations for a § 1981 claim is two years. Gonzalez v. Firestone Tire and Rubber Co., 610 F.2d 241, 250 (5th Cir. 1980). It is uncontested that Blackman waited until January 13, 2000, to file his lawsuit. Thus, the City argues that the time limit bars Blackman from asserting any § 1981 claims for actions occurring before January 13, 1998.
Plaintiff asserts that the City initiated an investigation against him in retaliation for his complaints about the department's employment practices. Def. App. at 55. The Public Integrity Unit of the Dallas Police Department investigated Blackman for code violations on properties. Cmplt. at 2. The allegedly improper investigation was requested on October 16, 1997, and was closed on December 4, 1997. As the investigation was initiated and closed before January 13, 1998, Blackman's claim that he was investigated in retaliation for complaints he made about the department's employment practices is time-barred. Accordingly, Defendant's motion for summary judgment is GRANTED as to Blackman's § 1983 claims predating January 13, 1998.
C. Blackman's Claim under Section 1981
Blackman claims that the City retaliated against him by removing his name from the Civil Service list of eligibles for the Division Manager 57 position in violation of his civil rights under § 1981. To establish a prima facie case of retaliation under § 1981, Blackman must show: (1) he participated in a statutorily-protected activity; (2) he suffered an adverse employment action; and (3) a causal connection exists between the protected activity and the adverse employment action. See Jones v. Flagship Int'l, 793 F.2d 714 (5th Cir. 1986).
As discussed previously, Blackman does not provide any evidence that the City used a roster of applicants to fill the Division Manager 57 position that did not include his name or that the City removed his name from any Civil Service list of eligibles. Plaintiff offers only unsupported allegations that his name was improperly removed from the Manager 57 eligibility list in retaliation for grievances filed. Without more, Blackman's claim must fail as a matter of law. Accordingly, Defendant's motion for summary judgment as to Blackman's retaliation claim is GRANTED.
See supra Part II, Section C-2(b).
CONCLUSION
Upon careful review of the parties' arguments, the summary judgment record, and the relevant law, the Court concludes that Plaintiff Neely Blackman has failed to demonstrate a material dispute of fact as to his discrimination and retaliation claims. Accordingly, Defendant's motion for summary judgment is hereby GRANTED as to each of Blackman's claims.