Opinion
No. 7:02-CV-072-R
April 17, 2003
MEMORANDUM OPINION AND ORDER
Defendant's Motion for Summary Judgment ("Defendant's Motion") (filed November 15, 2002) is now before this Court. For the reasons discussed below, Defendant's Motion is GRANTED, and Plaintiff's claims are DISMISSED WITH PREJUDICE.
I. BACKGROUND
This is an employment discrimination case. Plaintiff, Gail Frazier ("Frazier"), is a member of the Turtle Mountain Chippewa tribe. She was born on February 18, 1952, and has been employed full-time as a phlebotomist by the Health Department of the City of Wichita Falls, Texas (the "Health Department") since January 1995. She was 48 years old at the time of the alleged discrimination.
A phlebotomist is someone who draws blood from patients in order to test it for various pathological conditions. The process of drawing blood is called venipuncture. Plaintiff describes the steps involved in venipuncture as: "Put the tourniquet [on]. find the vein, clean the area, dry the area, puncture, push the hub in, draw the blood out . . . loose the tourniquet, pull the needle." Deposition of Gail Frazier (" Plaintiff's Deposition") at 37.
In addition to her employment at the Health Department, Plaintiff sought additional part-time work as a means of supplementing her income. On August 30, 2000, Plaintiff submitted an employment application for a part-time venipuncture position to Defendant, United Regional Health Care System ("URH"), a large, full-service hospital in Wichita Falls. After Plaintiff made several follow-up calls to inquire about the status of her employment application, she was told that her application had been lost and that she should reapply. She submitted a second application on January 15, 2001, and was interviewed for employment on January 23, 2001. After the interview, Defendant declined to offer Plaintiff employment.
The application was apparently lost during a move by URH's Human Resources Department. Plaintiff does not allege any discrimination in regards to this first application. Plaintiff's Deposition at 52-53.
Plaintiff alleges that Defendant's decision not to hire her was motivated by age, gender and/or racial discrimination. On March 8, 2001, Plaintiff filed a charge of discrimination with the Texas Commission on Human Rights and the EEOC. The EEOC subsequently issued a Notice of Right to Sue. On March 7, 2002, Plaintiff filed a Complaint in this Court alleging that URH's failure to hire her violated 42 U.S.C. § 1981(a) and the Texas Commission on Human Rights Act (the "TCHRA"), Tex. Lab. Code Ann. § 21.001 et seq. (Vernon 1996 Supp. 2003).
Plaintiff's complaint also alleges a violation of "the Civil Rights Act of 1871," 42 U.S.C. § 1983. Complaint at 3(¶ 12). However, Plaintiff has not briefed this allegation, nor is there any evidence of action which was done under "color of law" as required under § 1983. Therefore any § 1983 claims are hereby DISMISSED. It should also be noted that Plaintiff is nor alleging a violation of Title VII. Plaintiff's Response to Defendant's Motion for Summary Judgment (" Plaintiff's Response") at 12 ("Plaintiff has not plead[ed] a Title VII claim"). Any Title VII claims Plaintiff may have once had are time barred as more than 6 months elapsed between Plaintiff's receipt of the EEOC Notice of Right to Sue ("within three or four days" of August 10, 2001) and the filing of Plaintiff's Complaint (March 7, 2002). Plaintiff's Deposition at 107. Title VII claims are untimely if not made within 90 days after receipt of the Notice of Right to Sue.
II. ANALYSIS
A. SUMMARY JUDGMENT STANDARDRule 56(c) of the Federal Rules of Civil Procedure allows summary judgment when there is no genuine issue as to any 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, 322 (1986); Melton v. Teachers Ins. Annuity Ass'n of Am, 114 F.3d 557, 559 (5th Cir. 1997). The court must decide all reasonable doubts and inferences in the light most favorable to the party opposing the motion. Lemelle v. Universal Mfg. Corp., 18 F.3d 1268, 1272 (5th Cir. 1994); Walker v. Sears, Roebuck Co., 853 F.2d 355, 358 (5th Cir. 1988). As long as there appears to be some support for the disputed allegations such that "reasonable minds could differ as to the import of the evidence," the motion must be denied. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).
The party moving for summary judgment bears the initial burden of identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323; Lynch Properties, Inc. v. Potomac Ins. Co., 140 F.3d 622, 625 (5th Cir. 1998). Where the non-moving party bears the burden of proof on a claim upon which summary judgment is sought, the moving party may discharge its summary judgment burden by showing that there is an absence of evidence to support the non-moving party's case. Celotex, 477 U.S. at 325. Once the moving party has satisfied this burden, the non-moving party must go beyond the pleadings and by its own affidavits or depositions, answers to interrogatories, and admissions on file set forth specific facts showing a genuine issue for trial Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Edwards v. Your Credit, Inc., 148 F.3d 427, 431-32 (5th Cir. 1998). Summary judgment will be granted "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322.
Because employment discrimination claims "involve nebulous questions of motivation and intent," summary judgment is generally an inappropriate tool for resolving these cases. Thornbrough v. Columbus Greenville R.R. Co., 760 F.2d 633, 64041 (5th Cir. 1985) (citations omitted). However, if Plaintiff fails to establish a prima facie case, Bauer v. Albermarle Corp., 169 F.3d 962, 966 (5th Cir. 1999), or if defendant presents strong evidence of a legitimate, nondiscriminatory reason for its actions and the plaintiff is unable to counter with additional evidence of pretext, summary judgment may be properly granted. Enplanar, Inc. v. Marsh, 11 F.3d 1284, 1295 (5th Cir. 1994).
B. PLAINTIFF'S FAILURE TO ESTABLISH A PRIMA FACIE CASE
Section 21.051 of the TCHRA is a broad prohibition on employment discrimination. It provides that: "An employer commits an unlawful employment practice if because of race, color, disability, religion, sex, national origin, or age the employer: . . . fails or refuses to hire an individual." Tex. Lab. Code. Ann. § 21.051 (Vernon 1996 Supp. 2003). The Civil Rights Act of 1866, as amended by the Civil Rights Act of 1991, provides in § 1981(a) that: "All persons within the jurisdiction of the United States . . . shall have the same right . . . to make and enforce contracts . . . as is enjoyed by white citizens." 42 U.S.C. § 1981(a). Plaintiff's age and gender discrimination claims arise solely under the TCHRA, while Plaintiff's race discrimination claim arises under both the TCHRA and § 1981(a).
Allegations of employment discrimination under § 1981(a) and the TCHRA are both evaluated under the McDonnell Douglas burden shifting framework, which is also used for Title VII and ADEA claims, Jinks v. Advanced Protection Systems, Inc., 162 F. Supp.2d 542, 545-56 (N.D. Tex. 2001) ("The familiar burden shifting framework applicable to Title VII claims for race discrimination also applies to [plaintiff's] § 1981 and TCHRA claims."); Shackleford v. Deloitte Touche, LLP, 190 F.3d 398, 404 n. 2 (5th Cir. 1999) ("When used as parallel causes of action., Title VII and section 1981 require the same proof to establish liability. Similarly the law governing claims under the TCHRA and Title VII is identical.") (citation omitted). Under McDonnell Douglas, the first step in examining an employment discrimination claim is to determine whether the plaintiff has established a prima facie case. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). In a failure to hire case, to establish a prima facie case of race, gender or age discrimination, a plaintiff must introduce evidence that she:
1) is a member of a protected class, 2) applied for a position, 3) was qualified for that position when she applied, 4) was not selected for the position, and 5) after Defendant declined to hire her, the position either remained open or a person who is not a member of a protected class was chosen in her stead.Davis v. Chevron U.S.A., Inc., 14 F.3d 1082, 1087 (5th Cir. 1994); see also Evans v. City of Houston, 246 F.3d 344, 350 (5th Cir. 2001). Plaintiff easily satisfies the first, second and fourth elements of the prima facie case- as a 48 year old female Native American, she is a member of three protected classes (age, gender, and race), she applied for a position with Defendant, and she was not selected for the position. However, Plaintiff has failed to demonstrate that she was "qualified" for the position for which she applied as required to establish the third element of her prima facie case.
Plaintiff applied for a "part-time" position with Defendant. The URH employment application which Plaintiff completed requests applicants to "indicate which status and shifts [they] are willing to work." In response to this question, Plaintiff designated her desired status as "part- time" and indicated that she was willing to work "evenings." Plaintiff did not indicate interest in "occasional" (also known as "PRN") or "temporary" work, nor did she state that she would accept day, night or weekend shifts. Instead, she specified only that she was seeking "part-time" and/or "evening" shifts. During her deposition, Plaintiff was asked about her designations on the employment application:
Plaintiff's Deposition, Exhibit B at 1.
Neither party defines the acronym "PRN," other than to state that it is used to refer to an "occasional," as opposed to "part-time," phlebotomist position.
Plaintiff's Deposition. Exhibit B at 1. The relevant section of Plaintiff's employment application was completed as follows:
Q: Is another word for occasional, PRN, to the best of your knowledge?
A: Yes.
Q: And you did not indicate you were available for occasional or PRN on this application, did you?
A: No. . . .
Q: And again, you didn't — you were not interested in the occasional or PRN position; is that right, Ms. Frazier?
A: Yes.
Q: Was the reason you were not interested in that because that type of position doesn't involve employee benefits?
A; No.
Q: Why were you not interested in that status?
A: Because I worked an eight-hour shift, and I would not be available from 8:00 to 5:00.
Q: Okay. And so when you checked evenings on this, what did you — what were you seeking? What type of hours were you seeking?
A: When I got off, 5:00 o'clock, 5:00 to 11:00, 6:00 to 11:00, 7:00 to 11:00, whatever.
Q: 11:00 P.M? Just for the record —
A: Yes.
Q: — is that 5:00 P.M. to 11:00 P.M.?
A: Yes. . . .
Q: Do you recall being asked [during the employment interview] about your availability in terms of the hours you could work or were willing to work?
A: I told them what hours I can work.
Q: Okay And are those the hours you've already testified to?
Plaintiff's Deposition at 51, 55-56, 60.
From the above quoted deposition testimony, it is apparent that Plaintiff sought employment from roughly 5:00 to 11:00 p.m. on weekdays, did not express a willingness to work weekends, and did not seek the occasional (PRN) position.
The "part-time" phlebotomist position at URH requires that the employee work both days on alternating weekends, and one weekday per week, and such work must be done during one of the following three shifts: morning (5:00 a.m.-1:30 p.m.), evening (1:30 p.m.-10:00 p.m.), or night (9:30 p.m.-8:00 a.m.). Plaintiff, both in her employment application and deposition testimony, did not manifest either the willingness or the capability to work any of the three possible "part-time" shifts. Indeed, given that Plaintiff was not seeking to resign from her full-time (8:00 a.m.- 5:00 pm) position with the Health Department, it was impossible for her to work any of the three "part-time" shifts. Therefore, Plaintiff was not qualified for the position for which she sought employment. As such, Plaintiff has failed to satisfy the third element of her prima facie case for age, race and gender discrimination under both § 1981(a) and the TCHRA. See Egu v. Salvation Army, 172 F.3d 56, 1999 WL 109976. at *2 (9th Cir. Mar. 3, 1999) (unpublished opinion) (Title VII plaintiff unable to work the required hours); Lovell v. Brinker Intl., Inc., 1997 WL 570457, at *5-6 (W.D. Mo. Jun. 27, 1997)(same).
Plaintiff attempts to escape the legal consequences of her inability to work a "part-time" schedule by asserting that URH should have offered her an occasional (PRN) position, even though she applied for a part-time position. Plaintiff's Affidavit states that her interviewers:
did not mention a PRN position to me. If they had offered me a PRN position because the part-time position that I applied for would not work with my full time job at the health department, I would have taken it. I needed any position they had to offer in order to lighten my financial burden.
There are two reasons why this statement fails to assist Plaintiff's case. First, the statement contradicts Plaintiff's clear expression of intent on her employment application to apply only for a "part-time" position, as well as her statements in her deposition (quoted supra) that she was not applying for a PRN position. Such a self-made dispute of facts is insufficient to defeat a motion for summary judgment. Doe v. Dallas Ind. School District, 220 F.3d 380, 386 (5th Cir. 2000) ("a non moving party may not manufacture a dispute of fact merely to defeat a motion for summary judgment"); S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 495 (5th Cir. 1996) ("this court does not allow a party to defeat a motion for summary judgment using an affidavit that impeaches, without explanation, sworn testimony"). Second, and more importantly, there is no legal obligation for a company to offer a job applicant a position for which she has not applied. A reasonable job applicant casts her net widely, rather than expecting the employer to stretch the net to cover an area for which the applicant has not expressed interest. An unwillingness on the part of the employer to go the extra mile by matching an applicant with positions for which she has not expressed interest may or may not be good business practice. It does not, however, rise to the level of prohibited discrimination.
As Plaintiff has failed to establish the third element of her prima facie case, it is not necessary for this Court to determine whether Plaintiff has established the remaining element of the prima facie case, namely, that the position remained open or that someone who was not a member of the protected class was hired in her stead. See Davis, 14 F.3d at 1087. Nor does this Court need to examine the second or third steps of the McDonnell-Douglas burden shifting analysis.
III. CONCLUSION
For the foregoing reasons, Defendant's Motion for Summary Judgment is hereby GRANTED, and Plaintiff's claims are DISMISSED WITH PREJUDICE. Each side shall bear its own costs.
It is so ORDERED.
Please indicate which status and shifts you are willing to work: Full Time Part time [X] Occasional Temporary _____ 8 hour shift ________ Days _______ Weekends Only _____ 10 hour shift ___X____ Evenings _______ Weekdays Only _____ 12 hour shift ________ Nights _______ Weekends/weekdayPlaintiff's Deposition at 51, 55-56, 60.