Opinion
Civil Action No. 5:05-CV-004-C ECF.
January 17, 2006
ORDER
CAME ON FOR CONSIDERATION this day the Motion for Summary Judgment filed by Defendant, CITY OF LITTLEFIELD, TEXAS, on November 15, 2005. Also before this Court is the Response of Plaintiff, JOHN A. MARQUEZ, filed on December 5, 2005. On December 6, 2005, Defendant filed a Motion for Leave to File a Reply to the Plaintiff's Summary Judgment Response.
This Court is of the opinion that Defendant's Motion for Leave should be denied as moot.
I. FACTUAL AND PROCEDURAL BACKGROUND
In October 1987, Plaintiff, John Marquez, a Hispanic male, began working for the City of Littlefield, Texas as a sewer and water operator. In 2000, Plaintiff was promoted to Public Works Director, an increase in job responsibilities, but did not receive a pay increase. Additionally, Plaintiff claims that in December 2001, he was ordered by his supervisor, Chuck Smith, acting city manager, to discontinue supervising two white employees, Michael Williamson and Stephanie Williamson, who were Plaintiff's subordinates. In August 2002, Plaintiff was demoted and his salary was decreased from $41,000 a year to $36,000 a year. On January 4, 2005, Plaintiff filed suit against Defendant, City of Littlefield, for violations of his civil rights under Title VII and 42 U.S.C. § 1981. Specifically, Plaintiff claims that his failure to receive a pay increase in 2000 and his subsequent demotion and salary reduction in 2002 were the result of racial discrimination. On November 15, 2005, Defendant filed its motion for summary judgment.II. STANDARD
Summary judgment is appropriate only if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," when viewed in the light most favorable to the non-moving party, "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." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986) (internal quotations omitted). A dispute about a material fact is "genuine" if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Id. at 248. In making its determination, the court must draw all justifiable inferences in favor of the non-moving party. Id. at 255. Once the moving party has initially shown "that there is an absence of evidence to support the nonmoving party's case," Celotex Corp. v. Catrett, 477 U.S. 317, 325, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986), the non-movant must come forward, after adequate time for discovery, with significant probative evidence showing a triable issue of fact. FED. R. CIV. P. 56(e); State Farm Life Ins. Co. v. Gutterman, 896 F.2d 116, 118 (5th Cir. 1990). Conclusory allegations and denials, speculation, improbable inferences, unsubstantiated assertions, and legalistic argumentation are not adequate substitutes for specific facts showing that there is a genuine issue for trial. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428 (5th Cir. 1996) (en banc); SEC v. Recile, 10 F.3d 1093, 1097 (5th Cir. 1993).
To defeat a properly supported motion for summary judgment, the non-movant must present more than a mere scintilla of evidence. See Anderson, 477 U.S. at 251. Rather, the non-movant must present sufficient evidence upon which a jury could reasonably find in the non-movant's favor. Id. The pleadings are not summary judgment evidence. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). The nonmoving party must "go beyond the pleadings and by [his] own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial." Giles v. General Elec. Co., 245 F.3d 474, 493 (5th Cir. 2001) (quoting Celotex, 477 U.S. at 324). Absent a showing that there is a genuine issue for trial, a properly supported motion for summary judgment should be granted. See Eversley v. MBank Dallas, 843 F.2d 172, 173-74 (5th Cir. 1988); Resolution Trust Corp. v. Starkey, 41 F.3d 1018, 1022-23 (5th Cir. 1995).
A party moving for summary judgment may support that motion with appropriate evidence in an attempt to negate an essential element of the non-movant's claim or defense, but summary judgment is also appropriate when the movant shows that there is no evidence to support an essential element of the non-movant's claim or defense. See Celotex, 477 U.S. at 322 (1986). In order to withstand a no-evidence motion for summary judgment, the non-movant must present evidence sufficient to establish the existence of each element of his claim as to which he will have the burden of proof at trial. Id. The purpose of summary judgment, as the Supreme Court has instructed, is to "enable a party who believes there is no genuine dispute as to a specific fact essential to the other side's case to demand at least one sworn averment of that fact before the lengthy process of litigation continues." Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888, 110 S. Ct. 3177, 3189, 111 L. Ed. 2d 695 (1990); Liquid Air Corp., 37 F.3d at 1075. A court is to resolve all factual controversies in favor of the non-movant, "but only when there is an actual controversy, that is, when both parties have submitted evidence of contradictory facts. We do not, however, in the absence of any proof, assume that the nonmoving party could or would prove the necessary facts." Liquid Air, 37 F.3d at 1075. Summary judgment is appropriate when a party fails to establish the existence of an essential element of its case on which that party will bear the burden of proof at trial. Celotex, 477 U.S. at 322 (1986).
Furthermore, "summary judgment is appropriate where the only issue before the court is a pure question of law." Sheline v. Dun Bradstreet Corp., 948 F.2d 174, 176 (5th Cir. 1991); see also Neff v. Am. Dairy Queen Corp., 58 F.3d 1063, 1065 (5th Cir. 1995) ("Consequently, we hold that because the disputed issue in this case is purely legal, it was appropriately resolved through summary judgment.").
III. DISCUSSION
Title VII and § 1981
Plaintiff filed suit alleging racial discrimination in violation of Title VII and 42 U.S.C. § 1981. Specifically, Plaintiff claims that he was promoted to Public Works Director without receiving a pay increase, was not allowed to supervise his white subordinates, and was ultimately demoted because he is Hispanic. Discrimination can be established through "either direct or circumstantial evidence." Laxton v. Gap, Inc., 333 F.3d 572, 578 (5th Cir. 2003). "Absent direct evidence of discriminatory intent, as is typically the case, proof via circumstantial evidence is assembled using the framework set forth in the seminal case of McDonnell Douglas Corp. v. Green, 411 U.S. 792 . . . (1973)." Russell v. McKinney Hosp. Venture, 235 F.3d 219, 222 (5th Cir. 2000). Because Plaintiff has not presented direct evidence of race discrimination, Plaintiff must initially establish a prima facie case by satisfying a multi-factor test from which a discriminatory motive may be inferred, thus creating a rebuttable presumption of intentional discrimination. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000); Laxton, 333 F.3d at 578; Russell, 235 F.3d at 222; Wheeler v. BL Development Corp., 415 F.3d 399 (5th Cir. 2005). To establish a prima facie case of race discrimination under Title VII or § 1981, Plaintiff must show that he (1) is a member of a protected class; (2) was qualified for the position; (3) suffered an adverse employment action; and (4) was either replaced by someone outside the protected class or others similarly situated were more favorably treated. Okoye v. Univ. of Tex. Houston Health Sci. Ctr., 245 F.3d 507, 512-13 (5th Cir. 2001); see Rutherford v. Harris County, Tex., 197 F.3d 173, 184 (5th Cir. 1999); see also Rios v. Rossotti, 252 F.3d 375, 378 (5th Cir. 2001); Bryan v. McKinsey Co., Inc., 375 F.3d 358, 360 (5th Cir. 2004); Pegram v. Honeywell, Inc., 361 F.3d 272, 281 (5th Cir. 2004).
If Plaintiff establishes a prima facie case, the burden shifts to the Defendant to articulate a legitimate, nondiscriminatory reason for its employment decision. Reeves, 530 U.S. at 142; McDonnell Douglas Corp., 411 U.S. at 802; Laxton, 333 F.3d at 578. If Defendant meets this burden, then to prevail on his Title VII and/or § 1981 claims, Plaintiff must demonstrate that Defendant's articulated reason is a pretext for discrimination. See McDonnell Douglas, 411 U.S. at 802-04; Manning v. Chevron Chemical Co., 332 F.3d 874, 881 (5th Cir. 2003). Failure to Increase Pay
First, Plaintiff claims that when he was promoted to Public Works Director on October 18, 2000, he was not given a corresponding pay increase because of his race. (Pl.'s Original Compl., ¶ 9.) There is no dispute that Plaintiff has established the first three elements of his prima facie case with this claim. However, Defendant disputes whether Plaintiff can satisfy the fourth element of his prima facie case because others similarly situated were not treated more favorably than Plaintiff. To demonstrate that another employee outside the protected class is "similarly situated," Plaintiff must show that the circumstances of both employees was "nearly identical." See Wallace v. Methodist Hosp. Sys., 271 F.3d 212, 221 (5th Cir. 2001). However, Plaintiff has failed to produce any specific evidence that another employee under circumstances "nearly identical" to his own was treated more favorably by the City of Littlefield, and thus Plaintiff has failed to establish a prima facie case of discrimination.
However, assuming that Plaintiff had produced competent summary judgment evidence that met his prima facie burden, which he has not, the Defendant has articulated a legitimate, non-discriminatory reason for Plaintiff's failure to receive a pay increase in October 2000. Defendant claims that the Plaintiff did not receive a corresponding raise in salary "[b]ecause of budgetary constraints," which is "not uncommon at the City of Littlefield." (See Def.'s Br., p. 4; Chuck Smith Dep. App. B, p. 34-36.) Plaintiff also admits that he was informed that he would not receive a pay increase because of budget constraints. ( See Pl.'s Original Compl., ¶ 9.) Therefore, to survive summary judgment on this claim, either under Title VII or § 1981, Plaintiff must demonstrate that Defendant's proffered reasons are pretext for discrimination. A plaintiff may establish pretext either through evidence of disparate treatment or by showing that the employer's proffered explanation is false or "unworthy of credence." Laxton, 333 F.3d at 578. Plaintiff has completely failed to produce any summary judgment evidence that the City's proffered reasons for termination are false or unworthy of credence. Furthermore, Plaintiff has failed to produce sufficient summary judgment evidence of disparate treatment. Consequently, this Court is of the opinion that Defendant's motion for summary judgment should be granted on this claim. Job Duties
Plaintiff's claim that he suffered racial discrimination when he was not given a pay raise to accompany his promotion to Public Works Director in 2000 is also barred by the statute of limitations. Before a plaintiff may file a civil action under Title VII, he must exhaust administrative remedies, which includes filing a charge of discrimination with the EEOC within 300 days after the alleged violations occurred. See 42 U.S.C. § 2000e-5(b), (e), (f); 42 U.S.C. § 12117. Furthermore, a plaintiff must file a discrimination claim under § 1981 within two years of the adverse employment action. Pegram, 361 F.3d at 278-79 (holding discrimination claims arising more than two years before plaintiff filed federal complaint were time-barred). Here, Plaintiff did not file a claim with the EEOC until after October 2002, and did not file suit in federal court until January 4, 2005. ( See Pl.'s Resp., Ex. C.; Pl.'s Original Compl., p. 1.) Consequently, this Court finds that Plaintiff's October 2000 claim of discrimination was not filed with the EEOC within 300 days of the alleged discriminatory conduct nor was his suit filed under § 1981 within two years, and thus these avenues of relief are also time-barred as to this claim.
Second, Plaintiff claims that he suffered discrimination when he was told by his supervisor, Chuck Smith, not to give two white employees under his supervision, Michael Williamson, a water/sewer superintendent, and Stephanie Williamson, a code enforcement officer, any direct orders. (See Pl.'s Original Compl., ¶ 11.) Again, Plaintiff has failed to produce any summary judgment evidence that similarly situated individuals were treated more favorably in nearly identical circumstances. Plaintiff has also failed to establish how a change in supervision responsibilities in this context is an adverse employment action under Title VII or § 1981. "An adverse employment action consists of `ultimate employment decisions such as hiring, granting leave, discharging, promoting, and compensating.'" Pegram, 361 F.3d at 282 (quoting Felton v. Polles, 315 F.3d 470, 486 (5th Cir. 2002)). By directing Plaintiff not to give certain orders to various employees, Plaintiff did not suffer an adverse employment action. Consequently, Plaintiff has failed to establish a prima facie case of discrimination with this claim.
Assuming, once again, that Plaintiff met his burden of establishing a prima facie case, which he has not, Defendant again has articulated a legitimate, non-discriminatory reason for the City's action. When Michael Williamson was promoted to Water and Sewer Superintendent, he had no prior experience as a manager/supervisor. ( See Def.'s Br., p. 5.) Consequently, Chuck Smith told Plaintiff to allow Michael Williamson to develop his own managerial/supervisory style. ( See Def.'s Br., p. 5.) Because this is a legitimate, non-discriminatory reason for Defendant's request, Plaintiff must produce competent summary judgment evidence that this is a pretext. However, Plaintiff has failed to produce any evidence of disparate treatment or that the City's proffered reasons for allowing Michael Williamson to develop his own managerial style are false and unworthy of credence. Consequently, this Court is of the opinion that Defendant's motion for summary judgment should be granted on this claim.
Demotion Salary Reduction
Finally, Plaintiff argues that he was demoted from his position as Public Works Director on August 9, 2002, and his salary was reduced from $41,000 to $36,000, effective October 1, 2002, in violation of Title VII and § 1981. ( See Pl.'s Original Compl., ¶¶ 13-19.) There is no dispute that Plaintiff has established the first three elements of his prima facie case. However, Plaintiff has not produced any evidence that the City replaced him with a person outside his protected group nor has Plaintiff produced evidence suggesting that other employees outside of his protected class were treated more favorably after committing similar infractions. See Okoye, 245 F.3d at 512-13. Thus, Plaintiff has failed to establish a prima facie case of race discrimination with his demotion.
Additionally, assuming that Plaintiff could establish a prima facie case, Plaintiff nonetheless cannot establish that the legitimate, non-discriminatory reason proffered for his demotion is a pretext. Defendant apparently demoted Plaintiff because Plaintiff failed to adequately supervise the Water and Sewer Department. ( See Def.'s Br., Chuck Smith Dep., App. Ex. B at 30-33, 37-38; App. A, Danny Davis Dep., pp. 8-9, 11-14, 24-25; App. Ex H, p. 60.) Specifically, Plaintiff was not present at various emergencies, such as water line breaks or water well fields being knocked off line by power failures, in accordance with his job responsibilities as Public Works Director. ( See Def.'s Br., p. 5; Danny Davis Dep., App. Ex. A p. 8-9.) When the city manager, Danny Davis, became aware that Plaintiff was failing to perform all of his job functions, he conducted an investigation. ( See Def.'s Br., p. 5; Danny Davis Dep., App. Ex. A p. 10-11.) At the conclusion of Davis' investigation, he recommended to the city council that the Plaintiff be removed from the position of Public Works Director because the Plaintiff had abandoned a large part of his job duties for eight or nine months. ( See Def.'s Br., p. 6; Danny Davis Dep., App. Ex A p. 15-19.)
In response, Plaintiff submits that Defendant's proffered reason is a pretext. Plaintiff explains that he was similarly situated to the Treasurer, Fire Chief, Police Chief, EMS Director, and the Municipal Court Judge. As heads of various departments, they all had similar supervisory jobs and would have similar responsibilities for their departments and the employees under their supervision. Although this Court may agree with Plaintiff that these section heads were similarly situated to Plaintiff, Plaintiff misses a critical point. Not only must the individuals be similarly situated, they must also be treated more favorably than Plaintiff under nearly identical circumstances. There is no evidence that any of the department heads referenced by Plaintiff similarly failed to fulfill their job functions and yet were allowed to remain in their positions.
Plaintiff also argues that he was ordered by his supervisor, Chuck Smith, not to supervise the two white employees in his office. Thus, when the City fired him for failing to supervise these employees, the reason was a pretext for discrimination. ( See Pl.'s Resp., pp. 6-8.) However, Danny Davis, and not Chuck Smith, was responsible for Plaintiff's ultimate demotion. Before Plaintiff's demotion, Danny Davis confronted him with Chuck Smith's verison of events, namely that Smith never told Plaintiff not to supervise Mr. Williamson, but simply told Plaintiff to allow Mr. Williamson to develop his own style. Plaintiff requested the opportunity to provide City Manager Davis with proof that Smith had instructed him not to supervise Mr. Williamson, but when given the opportunity, Plaintiff failed to do so. Because Plaintiff failed to provide Davis with evidence that Smith had instructed him not to supervise Mr. Williamson, there is no competent summary judgment evidence before this Court that Danny Davis' recommendation to the city council that Plaintiff was unfit to serve as Public Works Director was false or unworthy of credence. Consequently, because Plaintiff has failed to establish a prima facie case of discrimination, and has additionally failed to establish that the City's legitimate, non-discriminatory reason for demoting him was a pretext, this Court is of the opinion that Defendant's motion for summary judgment should be granted.
Respondeat Superior
The Plaintiff has alleged that it may hold Defendant liable under the theory of respondeat superior. (Pl.'s Compl., ¶ 20.) Municipalities are "persons" within the meaning of § 1983. Victoria W. v. Larpenter, 369 F.3d 475, 482 (5th Cir. 2004). Municipalities are only liable for their own acts and not those attributed to them by principles of respondeat superior. Larpenter, 369 F.3d at 482. Consequently, this Court is of the opinion that Plaintiff cannot seek to hold the City liable under this theory and thus Defendant's motion for summary judgment should be granted.
IV. CONCLUSION
Having considered the papers filed and the various arguments and authorities, and for the reasons cited in Defendant's Brief in Support of its Motion for Summary Judgment and its Reply, this Court is of the opinion that Defendant is entitled to judgment as a matter of law as to all Plaintiff's claims.
The Court, based on the reasoning stated herein, hereby ORDERS that Defendant's Motion for Summary Judgment is GRANTED. Additionally, Defendant's Motion for Leave to File a Reply to Plaintiff's Summary Judgment Response is DENIED as moot. Defendant's Motion in Limine is DENIED as moot.
SO ORDERED.