Opinion
No. 01-3877, SECTION "N"
March 17, 2003
ORDER AND REASONS
Before the Court is a Motion for Summary Judgment Pursuant to Rule 56, filed by the defendants. For the reasons that follow, the motion is GRANTED.
I. BACKGROUND
Plaintiff, Darryl Dean, is a black police officer in the New Orleans Police Department. In 1997, he was disciplined for leaving his assigned post on March 23, 1997, having been found in his home, outside his assigned district. He was again disciplined for leaving his assigned post on April 24, 1997, this time being found at a hotel outside his assigned district. As a result of this incident, the Department allegedly investigated plaintiff regarding possible solicitation of prostitution. See Compl. at ¶ 46. Apparently, this investigation did not result in criminal charges. Plaintiff was suspended and removed from his rank as sergeant, but was not discharged. Plaintiff filed a complaint with the Equal Employment Opportunity Commission (EEOC), alleging discrimination based on race. He received a right-to-sue letter dated June 30, 1997, but did not file suit.
In April 2000, plaintiff allegedly received a poor performance evaluation. On October 17, 2000, plaintiff filed a complaint with the EEOC, alleging that the evaluation was motivated by race discrimination and retaliation for the 1997 EEOC complaint. The EEOC issued a right-to-sue letter on September 28, 2001. Plaintiff filed this complaint three months later, suing (1) the City of New Orleans, (2) Marc Morial, a former mayor of New Orleans, (3) Richard Pennington, a former chief of police, (4) Chief Deputy Ronal Serpas, (5) Lieutenant Richard Marino, and (5) Captain Anthony Genovese. In addition to his claims of race discrimination and retaliation, he alleges violations of his procedural due process rights.
II. LAW AND ANALYSIS
The defendants argue that they are entitled to judgment as a matter of law because: (1) the discrimination and retaliation claims based on 1997 events are time-barred; (2) he cannot produce evidence to support a prima facie case of discrimination or retaliation with regard to any employment action; (3) he cannot produce any evidence that he was denied notice or an opportunity to be heard with respect to any employment action, nor that he requested and was denied an opportunity to clear his name regarding the April 24, 1997 incident. The Court agrees that the plaintiff has failed to demonstrate a genuine issue and that the defendants are entitled to judgment as a matter of law, dismissing plaintiff's claims.
A. Standard for Summary Judgment:
"Summary judgment is proper `if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.'" Kee v. City of Rowlett, Texas, 247 F.3d 206, 210 (5th Cir.), (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (quoting Fed.R.Civ.P. 56(c))), cert. denied, 122 S.Ct. 210 (2001). "The moving party bears the burden of showing . . . that there is an absence of evidence to support the nonmoving party's case." Id. at 210. If the moving party meets this burden, "the nonmovant must go beyond the pleadings and designate specific facts showing that there is a genuine issue for trial." Id. "A dispute over a material fact is genuine if the evidence is such that a jury reasonably could return a verdict for the nonmoving party." Id. (internal quotations omitted). "The substantive law determines which facts are material." Id. at 211.
B. Discrimination and Retaliation Claims Based ON 1997 Events:
Pursuant to Title VII, if the EEOC either dismisses a charge of employment discrimination or elects not to file a civil suit within 180 days after the filing of such a charge, the EEOC "shall so notify" the person aggrieved. 42 U.S.C. § 2000e-5(f)(1). "[W]ithin ninety days after the giving of such notice a civil action may be brought . . . by the person claiming to be aggrieved. . . ." Id. Federal courts have "strictly enforced" this ninety-day statutory limit for filing suit. Adams v. Noble, 137 F. Supp.2d 1054, 1058 (S.D. Ohio 2001). The defendants here assert that plaintiff was given notice of his right to sue on June 30, 1997. Plaintiff does not dispute this fact. Rather, plaintiff's sole argument on the time-bar issue is that the theory of continuing violation should apply to circumvent the time-bar. Thus, unless some equitable exception applies, plaintiff's time for filing suit on the alleged discriminatory actions in 1997 expired on September 29, 1997.
The Court can find no basis for applying the continuous violation theory here. Even assuming that the theory ever could apply to exempt a plaintiff from the ninety-day limit of section 2000e-5(f)(1), which is far from evident, plaintiff has not established any facts that would call for application of the theory here. The "core idea" of the doctrine "is that equitable considerations may very well require that the filing periods not begin to run until facts supportive of a Title VII charge . . . are or should be apparent to a reasonably prudent person similarly situated." See Webb v. Cardiothoracic Surgery Associates of North Texas, P.A., 139 F.3d 532, 537 (5th Cir. 1998) (internal quotations omitted). Its application "relieves a Title VII plaintiff from the burden of proving that the entire violation occurred within the actionable period provided the plaintiff can show a series of related acts, one or more of which falls within the limitations period." Id. "[T]he plaintiff seeking to invoke this doctrine must demonstrate more than a series of discrete discriminatory acts. . . ." Celestine v. Petroleos De Venezuella, 266 F.3d 343, 351-52 (5th Cir. 2001). And, he must show more than "the mere perpetuation of the effects of time-barred discrimination." Glass v. Petro-Tex Chemical Corp., 757 F.2d 1554, 1560 (5th Cir. 1985) (internal quotations omitted) (emphasis in original)). Rather, the plaintiff must "show that there has been a pattern or policy of discrimination continuing from outside the limitations period into the statutory limitations period, so that all discriminatory acts committed as part of this pattern or policy can be considered timely." Celestine, 266 F.3d at 351-52 (5th Cir. 2001) (emphasis added) (internal quotations omitted). "He must show an organized scheme leading to and including a present violation, such that it is the cumulative effect of the discriminatory practice, rather than any discrete occurrence, that gives rise to the cause of action." Id. at 352 (quoting Huckabay v. Moore, 142 F.3d 233, 239 (5th Cir. 1998)).
Plaintiff's allegations do not satisfy these requirements. He has shown no pattern or scheme of recurring related acts continuing into the actionable period. Rather, he merely asserts the conclusion that the defendants' acts constitute a continuous pattern. Nor has plaintiff produced any evidence from which a jury reasonably could conclude that a reasonable person similarly situated would not have been alerted in 1997 to protect his rights concerning the investigatory and disciplinary actions initiated in that year. Indeed, he did act to protect his rights by filing a complaint with the EEOC. Accordingly, the Court can find no basis for applying the doctrine of continuous violation. Any discrimination and/or retaliation claim based on the 1997 events is time-barred.
C. Failure to Establish a Prima Facie Case of Discrimination or Retaliation:
Defendants argue that plaintiff's discrimination and retaliation claims must be dismissed (to the extent they are not time-barred) because plaintiff has failed to make out a prima facie case of discrimination or retaliation. The Court agrees.
"To survive a motion for summary judgment, a Title VII plaintiff must first establish a prima facie case of discrimination by a preponderance of the evidence." Pratt v. City of Houston, 247 F.3d 601, 606 (5th Cir. 2001) (footnote omitted) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973)). If he does so a "presumption of discrimination" arises, and "the burden shifts to the defendant to articulate some legitimate, non-discriminatory reason for the challenged employment action." Id. "If such a showing is made, the burden shifts back to the plaintiff to demonstrate that the articulated reason was merely a pretext for discrimination." Id.
Here, the discrimination claim that is not time-barred is for a "poor" performance evaluation. To establish a prima facie case of race discrimination, plaintiff must prove the following: (1) that he is a member of a protected class; (2) that employer took an adverse employment action against him; and (3) that he was treated less favorably that employees not in the protected class or that the adverse action was taken because of his race. LaPierre v. Benson Nissan, Inc., 86 F.3d 444, 448 (5th Cir. 1996) ("The elements of a plaintiff's prima facie case necessarily vary according to the facts of the case and the nature of the claim."). To establish a prima facie case of retaliation, the plaintiff must show: "(1) the employee engaged in activity protected by Title VII; (2) the employer took adverse employment action against the employee; and (3) a causal connection exists between that protected activity and the adverse employment action." Mattern v. Eastman Kodak Co., 104 F.3d 702, 705 (5th Cir.), cert. denied, 522 U.S. 932 (1997).
The substance of the evaluation is unclear from the record. Plaintiff simply alleges that it was "poor" and inconsistent with evaluations made prior to 1997. See Compl. at ¶¶ 18, 19, 22, 24.
Plaintiff also makes conclusory assertions that the department has failed to promote plaintiff for over 16 years and has failed to give him a raise for over 5 years. However, he did not assert these claims in his EEOC complaint and has submitted no evidence to support them here.
Plaintiff has failed to produce any evidence that his April 9, 2000 evaluation (or any previous evaluation) was because of race or any protected activity. Indeed, he has produced no evidence whatsoever regarding the evaluation. He has submitted no evidence regarding the contents of the evaluation, the criteria employed, or the procedure entailed. He has produced no evidence of how any similarly situated white officer was rated, nor any evidence suggesting that any particular finding contained in the evaluation was inconsistent with his actual performance during the relevant time period. He states that "statistically" the police department has treated white employees differently than black employees "in all areas of employments [sic] i.e. termination, suspension, disciplinary actions, transfers, promotions, equal pay etc." See Plaintiff's Statement of Disputed Facts at ¶ 68. However, he has submitted no evidence to support this sweeping conclusion.
Plaintiff does not define the term.
Plaintiff has attached to his opposition memorandum a document entitled "Request for Admission of Facts." One of the requests is that the defendants admit this sweeping statement regarding different treatment of black officers in "all areas" of employment. See Req. No. 64. However, plaintiff did not succeed in his motion before the United States Magistrate Judge to have these items deemed admitted. (Rec. Doc. 27). Moreover, even if the statement had been deemed admitted, this Court would permit the defendants to withdraw the admission. See Fed.R.Civ.P. 36(b). The statement is more a scientific opinion than it is a statement of fact, and it is not backed by any scientific methodology or explanation. The word "statistically" is not even defined. Finally, the request does not mention performance evaluations at all. Evaluations come within the request simply because they fall within the all-encompassing term "all areas of employments [sic]."
Accordingly, the Court finds that plaintiff has failed to establish a prima facie case of either race discrimination or retaliation and that defendants are entitled to judgment as a matter of law on these claims.
D. Procedural Due Process:
In addition to asserting claims under Title VII, plaintiff seeks damages under 42 U.S.C. § 1983, alleging that he was denied due process in connection with each of the employment actions discussed above. However, plaintiff has submitted no evidence that he was denied notice or an opportunity to be heard regarding any of the actions mentioned in the complaint. Indeed, with regard to both of the disciplinary actions concerning the events in 1997, plaintiff litigated his case through all levels of the Civil Service Commission and up to the Louisiana Court of Appeal for the Fourth Circuit. See Dean v. Department of Police, 756 So.2d 1150 (La.App. 4th Cir. 2000), writ denied, 762 So.2d 1107 (La. 2000); Dean v. Department of Police, 735 So.2d 142 (La.App. 4th Cir. 1999) (Table).
"[D]ue process generally requires notice and an opportunity to be heard prior to the deprivation of a protected property interest." Patel v. Midland Memorial Hosp. Medical Center, 298 F.3d 333, 339 (5th Cir. 2002), cert. denied, 123 S.Ct. 885 (2003). "It is well settled, however, that `[p]rocedural due process is a flexible concept whose contours are shaped by the nature of the individual's and the state interests in a particular deprivation.'" Id. (quoting Caine v. Hardy, 943 F.2d 1406, 1412 (5th Cir. 1991)). In some cases, "postdeprivation process is enough to satisfy the requirements of due process." Id.
Plaintiff argues that the Court should not consider the documents showing plaintiffs litigation regarding these incidents because defendants have not listed them on any exhibit list. The Court disagrees. The exhibit list required in this Court's scheduling order is for exhibits to be used at trial. See Rec.Doc. 10. Moreover, striking defendants' exhibits would not change the result here, for it is plaintiff's burden to come forward with some evidence demonstrating a genuine issue of fact, and he has failed to do so.
Finally, plaintiff seeks damages under section 1983 for the publicity surrounding the investigation arising out of the April 24, 1997 incident in which plaintiff was found at a hotel outside his assigned district. Publicly disclosing stigmatizing charges against an employee may violate the employee's procedural due process rights if the employee thereafter requested and was denied an opportunity to clear his name. Hughes v. City of Garland, 204 F.3d 223, 226 (5th Cir. 2000). To prevail in such a claim, the plaintiff must show: (1) that he was discharged (or in this case, disciplined); "(2) that stigmatizing charges were made against [him] in connection with the [discipline]; (3) that the charges were false; (4) that [he] was not provided notice or an opportunity to be heard prior to [the discipline]; (5) that the charges were made public; (6) that [he] requested a hearing to clear [his] name; and (7) that the employer refused [his] request for a hearing." Id. Here, plaintiff has produced no evidence that he ever requested and was denied an opportunity to clear his name in connection with the April 24, 1997 incident. Indeed, the record reflects that he was afforded a full hearing, as well as an appeal process. See Dean, supra, 756 So.2d at 1152. Thus, the defendants are entitled to judgment as a matter of law on the procedural due process claims.
III. CONCLUSION
Accordingly, for the foregoing reasons, IT IS ORDERED that:
(1) Defendants' Motion for Summary Judgment is GRANTED and that plaintiffs' claims against the defendants are dismissed with prejudice;
(2) The trial, presently scheduled to commence on March 31, 2003, and the pretrial conference, presently set for March 20, 2003, are CANCELLED;
(3) Plaintiffs' Motion for Summary Judgment is DENIED AS MOOT; and
(4) The hearings on both plaintiff's motion for sanctions (to the extent it seeks relief other than to strike defendants' exhibits) and Defendants' Motion for Sanctions are CONTINUED to April 2, 2003. Counsel are encouraged to confer with one another regarding the necessity for maintaining these motions.