Opinion
Civil Action No. SA-04-CA-0121RF.
August 1, 2005
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Before the Court is Defendant North East Independent School District's ("NEISD") Motion for Summary Judgment (Docket No. 22). After due consideration of the written briefs submitted by Defendant NEISD and Plaintiff Guerra (Docket Nos. 22, 27, 30), the Court finds that the Plaintiff has raised no genuine issues of material fact with respect to the retaliation and constructive discharge claims and Orders that Defendant's Motion for Summary Judgment be Granted In Part for these claims. Thus, the Court Orders that Plaintiff's retaliation claim and constructive discharge claim be Dismissed With Prejudice. However, for the reasons set forth below, the Court Orders that the Defendant's Motion for Summary Judgment be Denied In Part as to the age discrimination claim.
FACTUAL AND PROCEDURAL BACKGROUND
This case arises from a dispute between Plaintiff Guerra, a former NEISD maintenance employee, and Defendant NEISD. Plaintiff claims that Defendant NEISD violated the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., when it failed to promote him to the Building Environmental Systems General Foreman Position. Plaintiff began working for Defendant in July of 1972. In August of 2001 at the age of fifty-seven years old, Plaintiff learned that he had been passed up in the selection for a Building Environmental Systems General Foreman by Mike Sendejo ("Sendejo"), a man who was thirty-seven years old. Plaintiff alleges that Sendejo was less qualified for the Foreman position and was selected as a consequence of his younger age.
Complaint, ¶¶ 3, 15.
Id., ¶ 14.
Id., ¶ 15.
Id.
On January 29, 2002, Plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission's ("EEOC") San Antonio District Office. The EEOC notified Plaintiff on May 13, 2003 of his right to file a civil action against NEISD. In October 2003, the EEOC issued a determination that there was evidence to demonstrate Plaintiff was discriminated against because of his age, in violation of the ADEA. The EEOC acknowledged in a letter to Plaintiff that Plaintiff was not selected for the Foreman position based on a low score he had received during the interview process by members of the interview committee. However, the EEOC's Determination also found evidence to demonstrate Plaintiff was "as qualified or more qualified than the successful candidate who is not in the protected age group, and who is less qualified for the General Foreman position."
Id., ¶ 16.
Id., ¶ 19.
Id., ¶ 25.
Exhibit F.
Id.
On August 3, 2004, Plaintiff filed an Amended Complaint (Docket No. 6), in which he additionally alleged that his supervisors, Amador Garza ("Garza") and later Sendejo, retaliated against him for filing employee grievances and that these retaliations constituted a constructive discharge. Thus, Plaintiff brings before the Court an ADEA claim, retaliation claim, and constructive discharge claim.
Docket No. 27, at 14.
Id.
On June 21, 2005, Defendant filed a Motion for Summary Judgment (Docket No. 22). Plaintiff responded to Defendant's Motion for Summary Judgment on June 26, 2005 (Docket No. 27). Defendant replied to Plaintiff's Response on July 27, 2005 (Docket No. 30).
STANDARD OF REVIEW
Summary judgment is appropriate if, after adequate time for discovery, there is no genuine issue of material fact and a party is entitled to judgment as a matter of law. A dispute regarding a material fact is "genuine" if the evidence is such that a reasonable jury could return a verdict in favor of the non-moving party. The party seeking summary judgment carries the burden of initially demonstrating the absence of a genuine issue of material fact. This burden does not require the moving party to produce evidence showing the absence of a genuine issue for trial; instead, the moving party can satisfy its burden simply by pointing out to the district court that there is no evidence to support the non-moving party's case.
FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Stahl v. Novartis Pharmaceuticals Corp., 283 F.3d 254, 263 (5th Cir. 2002).
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Celotex, 477 U.S. at 325.
Once the moving party has met its burden, the non-movant must "set forth specific facts showing that there is a genuine issue for trial." The non-moving party must also describe the precise manner in which the evidence he sets forth supports his claims. If the non-moving party fails to set forth specific facts to support an essential element of his claim and one on which that party will bear the burden of proof, then summary judgment is appropriate. Even if the non-movant brings forth evidence in support of his claim, summary judgment is nonetheless appropriate unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.
See Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1996).
Celotex, 477 U.S. at 323.
DISCUSSION
I. ADEA ClaimA. Plaintiff Cannot Make a Prima Facie ADA Case.
The ADEA makes it unlawful for an employer to discharge any individual because of the individual's age. In an age discrimination, failure to promote case, the employee must demonstrate that (1) he belongs to the protected class, thus is under forty years of age; (2) he applied to and was qualified for the position; (3) he was rejected; and (4) another applicant not belonging to the protected class was hired. The plaintiff must establish a prima facie case by a preponderance of the evidence. Once the plaintiff establishes a prima facie case by a preponderance of the evidence, the prima facie case raises an inference of unlawful discrimination. The burden of production then shifts to the defendant to offer a legitimate nondiscriminatory reason for the challenged employment action. The defendant meets this burden by presenting evidence that, "if believed by the trier of facts," supports a finding that unlawful discrimination was not the cause of the challenged employment action. If the defendant meets his burden, the presumption raised by the plaintiff's prima facie case disappears. However, the plaintiff then has an opportunity to show that the defendant's articulated rationale was merely a pretext for age discrimination.
Medina v. Ramsey Steel Co., Inc., 238 F.3d 674, 680-81 (5th Cir. 2001).
Rhodes v. Guiberson Oil Tools, 75 F.3d 989, 992 (5th Cir. 1996).
Id.
Id.
St. Mary's Honor Ctr. v. Hicks, 113 S.Ct. 2742, 2747 (1993).
Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 255(1981).
Id. at 253.
In the instant case, it is undisputed that Plaintiff is within the protected class, that he sought promotion to the Foreman position, that NEISD rejected Plaintiff for the Foreman position, and that Sendejo, an individual under forty years of age and not within the protected class, acquired the Foreman position.
The Court questions whether Plaintiff is qualified for the Foreman position, and therefore, whether he can satisfy the second element necessary to making a prima facie age discrimination case. The necessary qualifications for the Foreman's position included having the ability to effectively operate the District's Energy Management Control Systems ("EMCS"), having extensive knowledge of HVAC equipment, and being able to supervise and evaluate subordinates to ensure that subordinates maintain high productivity and the District personnel remain satisfied with the HVAC technicians' work. Plaintiff admitted in his deposition that he has had no training in or knowledge of the computer systems software used for the EMCS. Additionally, Plaintiff's testimony revealed that his only familiarity with computer systems consisted of "punching in and out" of the District's work order system to record attendance at job sites and taking a class on Word Perfect.
Exhibit D, Garza Aff. ¶ 3.
Exhibit A, Plaintiff's Depo. at pp. 82:11-83:8.
Id. at pp. 85:17-88:12.
Plaintiff stated in his letter of intent for the Foreman position that he was qualified for the Foreman position because he was "familiar with the locations of major HVAC equipment throughout the District." Conversely, Defendant reasoned that because the Foreman was not required to travel to the individual District campuses to repair the HVAC units, Plaintiff's knowledge of HVAC equipment locations was irrelevant. Plaintiff's knowledge of the HVAC equipment's location is not synonymous with knowledge of how HVAC systems work. For example, Plaintiff scored the second lowest among all HVAC technicians on an assessment exam administered by an independent consulting firm at the request of Plaintiff's supervisor, Garza, to determine basic HVAC knowledge. Plaintiff's distinct lack of knowledge for both computer systems and HVAC leads the Court to question whether Plaintiff satisfies the requisite qualifications for the Foreman position.
Id. at pp. 88:20-89:19; Exhibit 6.
Docket No. 22, at 12; Exhibit A, Plaintiff's Depo. at p. 89:8-21.
Exhibit A, Plaintiff's Depo. at pp. 74:25-76:22; Exhibit 4; Exhibit D, Garza Aff. ¶ 6.
B. Importance of EEOC's Determination
However, having given due consideration to the EEOC's Determination that Plaintiff is qualified to be Foreman, despite Plaintiff's admissions otherwise, the Court cannot yet find that Plaintiff does not meet the requisite qualifications for Foreman. The EEOC's Determination presents the Court with a genuine issue of material fact as to whether or not Plaintiff was qualified and thus discriminated against on the basis of age. The Court finds it highly unusual for the EEOC to issue Plaintiff a "right to sue letter" and then pursue an investigation of age discrimination. On February 27, 2002, Defendant submitted to the EEOC materials the interviewing committee had used when making a selection for the Foreman position. As of fall 2003, the EEOC still was actively investigating Plaintiff's age discrimination claim. On October 10, 2003, after reviewing the materials submitted by Defendant, the EEOC issued its Determination that Plaintiff had been discriminated against on the basis of age.
Exhibit E.
Exhibit F.
Even in situations in which the party moving for summary judgment has discharged its burden of demonstrating that no genuine issue of material fact exists, the Court has discretion to deny a Rule 56 motion. A denial may be appropriate even though the summary judgment standard appears to have been met. The Court has the freedom to allow a claim's continuation when it has any doubt as to the "wisdom" of terminating the claim "prior to a full trial." In the instant case, the EEOC's Determination that Plaintiff is qualified for the Foreman position and that he has been discriminated against raises genuine issues of material fact concerning Plaintiff's age discrimination claim. Accordingly, the Court is not persuaded to grant summary judgment of Plaintiff's age discrimination claim.
10A CHARLES A. WRIGHT ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 2728, at p. 525; See Marcus v. St. Paul Fire Marine Ins. Co., 651 F.2d 379 (5th Cir. 1981).
Id.
Id.
II. Retaliation Claim
Plaintiff also contends that NEISD retaliated against him as a result of his filing both grievances with the District and an EEOC charge of Discrimination related to his failure to be promoted. To establish a prima facie case of retaliation under the ADEA, Plaintiff must prove: (1) he engaged in an activity protected under the ADEA; (2) an adverse employment action occurred; and (3) that a causal link exists between the protected activity and the adverse employment action. To demonstrate a causal link between the protected activity and the adverse employment action, Plaintiff must demonstrate the employer's decision to terminate was based in part on the employer's knowledge of the employee's protected activity. The Fifth Circuit has found that adverse employment actions consist of "ultimate employment decisions," but they do not include "every decision made by employers that arguably might have some tangential effect upon those ultimate decisions." "Ultimate employment decisions" are defined by the Fifth Circuit as including acts "such as hiring, granting leave, promoting, and compensating." While formal reprimands can constitute adverse employment actions, "mere criticisms" alleged to be reprimands and internal reprimands do not constitute adverse employment actions.
Docket No. 6, ¶¶ 16-33.
Long v. Eastfield College, 88 F.3d 300, 305 (5th Cir. 1996).
Sherrod v. Am. Airlines, Inc., 132 F.3d 1112, 1122 (5th Cir. 1998).
Mattern v. Eastman Kodak Co., 104 F.3d 702, 707 (5th Cir. 1997) (quoting Dollis v. Rubin, 77 F.3d 777, 781-82 (5th Cir. 1995)).
Dollis, 77 F.3d at 782.
Benningfield v. City of Houston, 157 F.3d 369, 377 (5th Cir. 1998) (quoting Pierce v. Tex. Dep't of Crim. Justice, 37 F.3d 1146, 1149 (5th Cir. 1994)).
Id. (quoting Harrington v. Harris, 118 F.3d 359, 365 (5th Cir. 1997)).
Plaintiff's prima facie case of retaliation fails because Plaintiff cannot produce evidence that he even suffered an adverse employment action. On November 18, 2003, Plaintiff received a disciplinary notice related to his involvement in a workplace fight between two other employees. Plaintiff produces no evidence that this disciplinary notice circulated outside of his department, so as to constitute a formal reprimand which would be an adverse employment action under law. Nor does Plaintiff provide evidence that the criticism he received from Sendejo in front of coworkers on August 29, 2003 constituted anything more than "mere criticism" from within his department. Plaintiff's additional allegations that his supervisors, Sendejo and Garza, "singled" him out by responding to a complaint about his work from the NEISD Police Department Chief are tangential to adverse employment actions such as granting leave, discharging, hiring, and compensating.
Exhibit A, Plaintiff's Depo. at pp. 227:12-230:13; Docket No. 6, at ¶ 32.
Exhibit A, Plaintiff's Depo. at pp. 201:18-205:7; Docket No. 6, at ¶ 23; See Benningfield, 157 F.3d at 372.
See Dollis, 77 F.3d at 782.
Assuming arguendo that Plaintiff even experienced an adverse employment action, Plaintiff fails to show a causal link between the adverse employment action he experienced and his protected activity of filing grievances with Defendant and the EEOC. For example, in June 2004, Defendant's Community Education Department, for whom Plaintiff had taught karate classes, informed Plaintiff that his class would be discontinued since the entire karate program was sent out for bid to vendors. In his deposition testimony, Plaintiff admits that he was invited to competitively bid for a position as karate instructor for the District but decided not to do so. Even if Plaintiff's supervisors wanted to retaliate against him for filing grievances, Plaintiff has failed to demonstrate how his supervisors could have affected his chance to become a District karate instructor. Since Plaintiff did not even bid for the karate instructor position when invited to do so, he controlled whether or not he became a candidate for the karate instructor position. Thus, Plaintiff cannot satisfy the elements necessary to bringing a retaliation claim, and his retaliation claim fails as a matter of law.
Exhibit A, Plaintiff's Depo. at pp. 192:14-195:17; Docket No. 6, at ¶ 21.
Exhibit A, Plaintiff's Depo. at p. 198: 16-22.
III. Constructive Discharge Claim
Though not specifically mentioned in Plaintiff's Original Complaint (Document No. 1) or First Amended Original Complaint (Document No. 6), Plaintiff attempts to suggest that the alleged adverse employment actions he suffered constituted constructive discharge. In order to establish a constructive discharge claim, an employee must prove that the employer made the employee's working conditions "so intolerable that a reasonable employee would feel compelled to resign." The Fifth Circuit has held that constructive discharge cannot be based upon an employee's subjective preference for one position over another. The determinative factor in whether an employer's action constitutes constructive discharge is not the employer's intention but the effect of the conditions on a reasonable employee. The Fifth Circuit has found that publicity and derogatory comments resulting from disciplinary proceedings do not constitute constructive discharge, nor do unfavorable work evaluations.
Finch v. Fort Bend Indep. Sch. Dist., 333 F.3d 555, 562 (5th Cir. 2003).
Jett v. Dallas Indep. Sch. Dist., 798 F.2d 748, 755 (5th Cir. 1986) (quoting Kelleher v. Flawn, 761 F.2d 1079, 1086 (5th Cir. 1985)).
Kelleher, 761 F.2d at 1086.
Jett, 798 F.2d at 755 (quoting Shawgo v. Spradlin, 701 F.2d 470, 481-82 (5th Cir. 1983)).
Id. (quoting Junior v. Texaco, Inc., 688 F.2d 377, 380 (5th Cir. 1982)).
Plaintiff fails to prove that Defendant made his working conditions so intolerable that a reasonable person would feel compelled to resign. Plaintiff contends that the alleged retaliatory acts of supervisors Sendejo and Garza, in the form of disciplinary notices, internal reprimands, derogatory comments, and intermittent hostility constitute constructive discharge. Conversely, none of these alleged retaliatory actions satisfy the criteria of making an employee's working conditions so intolerable that a reasonable person would feel compelled to resign. The Fifth Circuit already has found that the unfavorable work evaluations, publicity, and derogatory comments of which Plaintiff complains are not enough to establish a constructive discharge claim. Plaintiff presents no evidence of retaliatory acts that a reasonable person would find so intolerable that he would feel compelled to resign. Rather, Plaintiff relies on his own subjective belief of what constitutes an intolerable work environment. Plaintiff's complaints do not satisfy the Fifth Circuit's objective test for succeeding on a constructive discharge claim, and thus, this claim fails as a matter of law.
See Id.; Shawgo, 701 F.2d at 481-82.
CONCLUSION
For the foregoing reasons, the Court finds that Plaintiff has failed to raise a genuine issue of material fact as to one or more essential elements of each of his retaliation claim and constructive discharge claim. However, given the EEOC's Determination that Plaintiff was discriminated against in the Foreman selection process on the basis of age, the Court finds that genuine issues of material fact exist concerning Plaintiff's age discrimination claim.
IT IS THEREFORE ORDERED that pursuant to Fed.R.Civ.P. Rule 56, Defendant's Motion for Summary Judgment (Docket No. 22) be GRANTED IN PART AND DENIED IN PART.
The Court ORDERS that Defendant's Motion for Summary Judgment (Docket No. 22) be GRANTED with respect to Plaintiff's retaliation and constructive discharge claims.
The Court ORDERS that Defendant's Motion for Summary Judgment (Docket No. 22) be DENIED with respect to Plaintiff's age discrimination claim.
It is SO ORDERED.