Opinion
CIVIL ACTION NO. H-00-3773
April 23, 2002
MEMORANDUM AND ORDER
Mildred Mills has sued her former employer, BMC Software, Inc. ("BMC"), alleging that BMC demoted her on the basis of her race and/or in retaliation for reporting incidents of racial discrimination; denied her promotions on the basis of her race and/or in retaliation for reporting incidents of racial discrimination; exposed her to a racially hostile work environment; and fired her on the basis of her disability, and/or on the basis of her race, and/or in retaliation for reporting incidents of racial discrimination. Mills alleges violations of 42 U.S.C. § 1981, Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the Americans with Disabilities Act, 42 U.S.C. § 12112 (b)(5)(A), et seq. Mills also asserts a Texas law claim for intentional infliction of emotional distress. BMC has moved for summary judgment as to all Mills's claims and for an award of its costs and attorney fees. (Docket Entry Nos. 26, 31, 48). Mills has responded. (Docket Entry Nos. 35, 37). The parties have submitted numerous and voluminous briefs and copious summary judgment evidence.
Based on the pleadings, the motions and responses, the summary judgment record, and the applicable law, this court GRANTS BMC's motion for summary judgment as to all the claims; DENIES BMC's challenges to the summary judgment evidence as moot; DENIES in part and GRANTS in part BMC's motion for attorney fees under section 1988; DENIES BMC's motion for attorney fees and costs under section 1927; and GRANTS BMC's motion for costs under FED. R. Civ. P. 54(d). BMC is ordered to submit an affidavit with supporting documentation relating to this court's partial grant of the motion for attorney fees under section 1988, no later than May 10, 2002. The reasons for these rulings are explained below.
I. Background
BMC Software, Inc. is an independent software vendor. BMC is divided into "business units," each led by a vice-president and general manager. The business units are divided into smaller subunits, led by a vice-president, which are in turn divided into groups led by directors. The directors supervise managers, representatives, and other employees.
Mildred Mills, a black female, began working at BMC in 1991 as an entry-level quality assurance representative. Five months later, BMC transferred Mills to product development. By 1993, BMC had promoted Mills to the position of manager of product line, research, and development in her group. (Docket Entry No. 35, p. 3). Throughout this period, Mills received consistently good performance evaluations. (Id., Ex. 1-A). In 1996, Mills voluntarily resigned from BMC to work for another company.
In June 1997, Mills reapplied to work at BMC. She was hired as a product development manager for integration testing in the same business unit. In January 1998, BMC promoted Mills to director of integration testing and globalization in the same business unit. In 1999, BMC assigned Mills to director of product development in the software storage segment of the recovery and storage business unit. Vice-president Ron Nichols, a white male, ran the software storage segment of that unit.
In early 1999, BMC acquired a company called Boole and Babbage. Several employees who had worked at the Boole and Babbage office in Conyers, Georgia, including David Dew, Kathy Jacques, and Doug Swords (collectively referred to as the "Conyers Group"), joined Nichols's group. Nichols's group was divided into a product management team and a development team. As the director of the development team, Mills reported directly to Nichols. BMC made Dew senior manager of product development, sharing responsibilities with Mills. (Docket Entry No. 35, p. 4). Jacques became director of the product management team and, like Mills, reported directly to Nichols. Swords became a director in the product management team, reporting to Jacques. (Id.; Ex. 12 ¶ 4).
Mills alleges that "[f]rom the outset, the Conyers Group had no interest in working harmoniously with [her]." (Id.). "After learning of Mills'[s] importance to the organization, the Conyers Group omitted Mills from meetings pertaining to her work responsibilities, refused to furnish Mills information needed to timely complete assignments, and disregarded Mills'[s] supervisory role by engaging meetings and projects directly with Mills'[s] subordinates without informing Mills." (Id.; Ex. 3, ¶ 11; Ex. 10, ¶ 4). Mills alleges that Jacques failed to respond to emails and voicemails requesting information and told Mills that her project "was not on [Jacques's] radar screen and was not going to get any attention"; that Dew refused to give her information on a project for which they shared responsibility; that Swords and other individuals in his group failed to include her in emails and meetings. (Docket Entry No. 35, Ex. 3, ¶ 11).
In deposition testimony, Jacques acknowledged that she did not respond to all of Mills's requests for information. (Id., Ex. 17, pp. 28-30). Jacques explained that Mills made more requests than Jacques had time to answer, but Mills had access to "all critical information." (Id. at 30). Some of Mills's other coworkers explained that they occasionally forgot to include Mills on some emails; that they did not send Mills emails because they addressed particular aspects of the project that did not involve her; and that Mills was too focused on small details of projects.
In 1999, Mills told Nichols that she was having problems getting along with the Conyers Group and complained that they were excluding her from meetings and information. Mills did not mention anything about racial issues to Nichols. Mills asserts that Nichols did not address her complaints.
On April 11, 2000, Dew invited Mills to come into Swords's office to look at a website, www.icebox.com. The parties do not dispute that it displayed a racist cartoon. The parties do dispute why Dew wanted to show Mills the website. Dew and Swords testified that Dew was interested in hiring Panther Software, a consulting firm that had designed technology used on the website. Dew denies that he knew the website's content when he showed it to Mills. Dew testified that the content of the website www.icebox.com could change several times in a week and he had not seen the cartoon the last time he had accessed the website. Dew stated that he would not have accessed the site had he known its content. (Docket Entry No. 28, Ex. E, pp. 48-51).
The parties do not dispute the content of the website. Mills has provided this court with a copy of the cartoon that appeared when Dew showed her the website. (Docket Entry No. 35, Ex. 3). In her deposition, Mills described the cartoon, entitled "Hard Drinkin' Lincoln," as follows:
And I heard this jingly music and this big square head man standing around. And I didn't hear everything that the thing said at this point because it was talking about Abe Lincoln as a great emancipator. And then I heard "He's a public masturbator" and something about "When he starts drinking, he's a public masturbator." And then I saw this very— I saw this black woman. She's a large black woman. She had a big Afro and some big eyes, very red lipstick, very large breasts and a little sign on her chest that said Sholita, or something like that, S-H-O-L-I-T-A. And then it — this character, this Abe Lincoln character asked her for a ticket to a movie and she said, "Not showing until midnight." And he said something to the effect "None of your sass. I freed your black ass."
(Docket Entry No. 28, Ex. A, pp. 188-89).
Dew and Swords described the technology as "a combination of streaming video and HTML flash animation," which produced high-speed animation that was "very fluid," not "jerky" like other types of animation. (Docket Entry No. 35, Ex. 7, p. 36; Ex. 8, p. 8).
Mills alleges that Dew showed her the website knowing that it contained racist images because he "wanted to convey his message that Mills was inferior to him and that Dew would not share development responsibilities with a black female." (Docket Entry No. 35, p. 6). Mills testified that when Dew saw her reaction, he "had turned red and was fumbling with the mouse . . . and he was still laughing heartily." (Docket Entry No. 35, Ex. A, p. 189). Dew testified that he did not remember laughing and that he tried to close the website as quickly as possible. (Id., Ex. E, pp. 51-54). Mills testified that the cartoon was still playing when she left Swords's office. (Id., Ex. A, p. 189). The parties dispute how long Swords was present.
According to Mills, Swords left the office before the cartoon began to play. Dew testified that Swords was in the office when the cartoon began to play and left shortly before Mills left. (Id., Ex. E, pp. 51-52). Dew testified that he remembered Swords shaking his head as he left, but not saying anything. (Id., Ex. E, pp. 5 1-52). Swords testified that after he heard the comment about Lincoln "freeing" the woman, he told Dew to shut off the cartoon because it was not appropriate. (Id., Ex. F. pp. 16-17). Swords testified that he stayed in his office after Mills left to tell Dew that he had acted inappropriately by showing a website without knowing its content. (Id. at 17-18).
The next day, April 12, 2000, Mills was in a meeting with Nichols when Dew came in to tell Nichols about the website incident. (Docket Entry No. 35, Ex. 3, ¶¶ 13-14). Nichols took no disciplinary action against Dew. On April 13, 2000, Mills sent Robert Whilden, BMC's general counsel, a written memorandum describing the incident. (Id., Ex. A-11; Docket Entry No. 28, Ex. A, pp. 202-03). Whilden talked to Dew, Swords, and Nichols, but did not interview Mills. (Docket Entry No. 42, p. 13). Whilden told Dew to prepare a memo summarizing the website incident. (Id.).
On April 24, 2000, Whilden sent a memorandum to Mills, explaining his conclusion that Dew did not know the content of the website before he showed it to Mills and his belief that Nichols, Dew, and Swords were embarrassed and sorry about the incident. (Docket Entry No. 28, Ex. A-b). Whilden sent a company-wide memorandum on April 26, 2000, cautioning people not to invite others to view websites without knowing their content and suitability. (Id., Ex. A-11). BMC took no action against Dew.
Mills alleges that after she reported the website incident, "the Conyers Group turned up the harassment against [her]." (Docket Entry No. 35, p. 7). Mills alleges that the Conyers Group "went on a `witch hunt' with Product Manager Sheila Childs in an effort to have a formal complaint filed against Mills." (Id.). In her affidavit, Childs stated that she had told Swords that Mills had suggested assigning a different BMC employee to a particular project. Mills had made the suggestion at a meeting involving personnel from BMC and from another company. Swords told Childs that Mills's "embarrassing" statement that the project should go to a different BMC employee was "a huge problem for which [Mills] could be fired." (Docket Entry No. 35, Ex. 12, ¶¶ 9-10). Swords asked Childs whether Mills had made similarly "inappropriate" remarks in the past. (Id. at ¶ 11). Childs stated that Swords had tried to "get [Childs] to say that [she] had seen Mills do something negative" and that she "felt as if Swords was putting together ammunition to terminate Mills." (Id. at ¶ 12). No formal complaint against Mills resulted.
Mills also alleges that the Conyers Group tried to have Lisa Critchlow, a black female, lodge a complaint against Mills. Critchlow had started working at BMC on March 20, 2000. In April 2000, Mills told Critchlow about the website incident and warned Critchlow that she might not receive support from her managers. Mills told Critchlow to take any complaints to human resources and asked Critchlow if she could still take a job offered by another company. Critchlow described the incident to Swords, who told Jacques, who, in turn, told Nichols. On May 4, 2000, Nichols, Mills, and Critchlow met to discuss Mills's statements. Critchlow later described feeling like a "pawn" in something bigger. There was no complaint filed.
The summary judgment record does not contain an affidavit or deposition testimony from Critchlow. Mills submitted handwritten notes, prepared by a consultant who interviewed Critchlow as part of the independent investigation that followed Mills's complaint. (Docket Entry No. 35, Ex. 13). In her report, the consultant stated that Critchlow had said she "felt like a pawn in the problems between Mills and Swords and Jacques." (Docket Entry No. 39, Ex. D-1, p. 9).
Mills alleges that in late April 2000, she heard a "rumor" that the Conyers Group was trying to "move her out of her job." (Docket Entry No. 28, Ex. A, pp. 97-98). On May 4, 2000, Mills told Nichols that she wanted to make a formal complaint about the Conyers Group excluding her from meetings and about Jacques and Swords trying to move her out of her job. (Id.). Mills did not tell Nichols that she believed that race was the cause of this conflict.
On April 17, 2000, BMC hired Chris Gahagan as vice-president and general manager of the recovery and storage business unit. Nichols, who had been acting in that position since February 2000, reported directly to Gahagan. Mills continued to report to Nichols as part of the software storage group. In early May 2000, Nichols met with Gahagan to discuss a proposed reorganization of his group. (Docket Entry No. 28, p. 7). Nichols testified that he had started to think about the reorganization "a few months before" he talked to Gahagan. (Docket Entry No. 35, Ex. 18, p. 87). Gahagan approved the proposal to merge the storage management and recovery groups into a single "Storage Solutions Group." The reorganization divided the new group into three subgroups — product definition, product development, and product commercialization — and centralized responsibility for quality assurance in the product commercialization subgroup. Quality assurance tasks had previously been distributed across the various groups and subgroups, with forty-eight individuals performing quality assurance functions.
On May 12, 2000, Nichols told Mills that he wanted her to be the director of the newly formed quality assurance group. Mills told Nichols that she viewed this move as a demotion and asked whether it was because of her complaint about "being . . . discriminated against by [her] peers." (Docket Entry No. 28, Ex. A, pp. 89, 115). Nichols explained that her complaint had nothing to do with her reassignment. Mills testified that Nichols had told her that she had "no other options" in that business unit. Nichols offered to help Mills find a position in a different unit, but she declined. (Docket Entry No. 28, Ex. A, p. 118). The following Monday, Nichols asked Mills for her decision. (Docket Entry No. 28, Ex. A, p. 117). Mills agreed to take the job, but told Nichols that she preferred product development and that she wanted to be promoted. (Id.). Mills received a $15,000.00 bonus for accepting the new quality assurance position.
BMC presented undisputed evidence showing that the reorganization affected two hundred and fifty employees, including the Conyers Group. (Docket Entry No. 28, p. 20). Dew was named director of product development and assumed some, but not all, of Mills's previous tasks. Jacques went from having responsibility for storage and recovery to having responsibility only for storage. Jacques no longer reported to Nichols directly, but to Jeff Peltier, who, in turn, reported to Nichols, a move down in the hierarchy for Jacques. Swords continued to report to Jacques. However, Swords's title changed from director to senior manager, a position below director in the corporate hierarchy. (Docket Entry No. 28, p. 8).
Mills asserts that her reassignment from director of product development to director of quality assurance was a demotion because the new position was less prestigious, less interesting, and had fewer opportunities for promotion. It is undisputed that Mills's pay, bonus percentage, and benefits did not change. (Docket Entry No. 28, Ex. A, pp. 125-26). Mills stayed in the same office. Mills remained a director in title and responsibilities. (Id. at 127). Indeed, Mills went from supervising twenty employees to supervising sixty employees in her new position. (Docket Entry No. 47, ¶ 14). BMC asserts that the reassignment was not a demotion at all and that Mills was chosen for the newly created position because she had the necessary skills and experience.
On June 13, 2000, a few weeks after Mills assumed the new position, Joyce Durst, a vice-president of another BMC business unit, contacted Mills about becoming a director of product development in that unit. Durst asked Gahagan for permission to interview Mills for the position. Gahagan refused, telling Durst that "Mills was too valuable to his organization." (Docket Entry No. 35, p. 10; Ex. G, pp. 91-92). Gahagan explained to Mills that BMC policy precluded employees from transferring to a new position until they had been in their current position for one year. (Id. at 90-92).
On July 24, 2000, Gahagan announced that BMC was removing Nichols from his business unit. Gahagan testified that he "fired" Nichols from his business unit because Nichols had mishandled Mills's initial complaints of discrimination by not involving human resources in the investigation. (Docket Entry No. 35, Ex. 19, pp. 38-41). Although Gahagan suggested that BMC fire Nichols, BMC gave Nichols a position in a different business unit.
Gahagan did not post the vacant vice-president position created by Nichols's transfer. Instead, recruiters within human resources identified candidates for the position. In addition to the candidates the recruiters identified, Gahagan suggested Helmuth Klemm, a non-BMC employee with whom Gahagan had worked before joining BMC. (Docket Entry No. 28, Ex. G, pp. 6-8). Gahagan testified in his deposition that he was looking for someone who had experience in managing a geographically dispersed organization and in software development. (Id. at 14-15). Gahagan discussed the potential candidates with BMC human resources personnel. Gahagan interviewed Ted Trimble, a BMC employee selected by human resources, and Klemm, both white males. Gahagan hired Klemm. Gahagan testified that the "overriding factor" was that Gahagan "knew what Mr. Klemm was capable of doing. He's proven himself before within the organizations that we worked together, and [Gahagan thought Klemm] had the right experience for the current situation that we had within the segment that he was being hired to manage." (Id. at 27). Gahagan did not recall whether Mills's name was on the list of potential candidates human resources provided. Gahagan did not consider Mills for the position. (Id. at 28). Gahagan testified when he decided to hire Klemm, he did not have information or an opinion as to whether Mills would have been qualified for the position. (Id. at 29-30). However, it is undisputed that Mills lacked one of the two criteria Gahagan followed in selecting the person for the position, prior experience in managing a large and dispersed organization. Mills asserts that she was "passed over" for promotion to Nichols's former position on the basis of her race and/or in retaliation for her complaints. (Docket Entry No. 35, pp. 12-13).
On July 14, 2000, BMC hired a third-party investigation firm, Employment Practices Solutions, to investigate Mills's complaints. Dedra Church was assigned as the investigator. In July and August 2000, Church interviewed approximately twenty BMC employees, including Mills, Dew, Taylor, Swords, Nichols, and Gahagan. Church submitted a report of her findings, concluding that there was "[n]o evidence of race discrimination." (Docket Entry No. 28, Ex. K-4, p. 12). In the report, Church stated as follows:
The evidence supports Mills' contention that some of her colleagues wanted her to be removed from her position. However, these colleagues appear to have been motivated not by racism, but rather, by a strong disrespect and dislike for Mills.
(Id., Ex. K-4, p. 3).
Gahagan and Lisa De La Garza, a BMC human resources director, met with Mills to discuss the results of Church's investigation. (Docket Entry No. 35, Ex. A, pp. 103-04). Gahagan and De La Garza told Mills that Church had concluded that there was no evidence of race discrimination but there was evidence of personality conflicts within the business unit and that some of the Conyers Group had admitted treating Mills badly. (Id.). Gahagan and De La Garza told Mills that BMC would hire outside consultants to help Gahagan's group work better as a team.
BMC hired JMW Consultants to conduct a two-day seminar with Mills, Nichols, Klemm, Gahagan, and the Conyers Group, among others. Mills left early on the second day. Mills asserts that Gahagan had "berate[d], demean[ed], and humilitate[d] [her] in front of the group." (Docket Entry No. 35, p. 13). Mills did not describe how Gahagan mistreated her. However, Mills testified that Klemm also had mistreated her. Mills explained that during the seminar, each person identified problems they wanted another person to resolve. Mills told the group that she wanted to "resolve" the "complicated structure" of her organization and asked Klemm if he would help; Klemm replied that he would only help Mills if he did not have to resolve it "her way." (Docket Entry No. 28, Ex. B, pp. 48-49).
On October 26, 2000, Mills filed this lawsuit. Mills continued to work in Gahagan's business unit after filing suit. On May 9, 2001, Mills filed an EEOC complaint, alleging race discrimination and retaliation. In her EEOC complaint, Mills described the website incident, her reassignment to the position of director of quality assurance, and Klemm's selection for the vice-president position. Mills alleged that Gahagan's business unit had no other black employees at or above the director level and that BMC had "less than a handful" of black employees at or above the director level. (Docket Entry No. 42, Ex. F). On November 16, 2001, the EEOC issued Mills a right to sue letter. (Id.).
On March 7, 2001, Mills began a medical leave of absence after receiving a diagnosis of "chronic gastroesophageal reflux disease with irritable bowel syndrome," induced and/or aggravated by stress. (Docket Entry No. 55, Ex. B, ¶ 4). In a letter dated March 9, 2001, BMC provided Mills information on short-term disability benefits, which were payable up to twenty-six weeks. (Docket Entry No. 55, Ex. A-1). Mills applied for and received short-term disability benefits from March 7, 2001 to October 6, 2001, except for approximately forty days in May and June 2001, when Mills returned to work on a part-time basis. On June 12, 2001, Mills resumed her leave on short-term disability, which continued until she began receiving long-term disability benefits. (Docket Entry No. 48, Ex. A, ¶ 4; Docket Entry No. 55, p. 7).
On August 17, 2001, Mills asked BMC's human resources department about long-term disability benefits. On August 30, 2001, Amy Olivares at BMC sent Mills a letter, explaining that Mills did not need to apply for long-term disability because the benefits company "automatically initiates the LTD review process when an employee's prognosis is such that it appears their disability may go beyond 26 weeks." (Docket Entry No. 55, Ex. A-18). Mills provided BMC human resources with documentation about her condition from her physician, Dr. Dwayne Williams. In a note dated September 7, 2001, Dr. Williams stated that he had advised Mills to pursue long-term disability benefits. (Docket Entry No. 55, Ex. C).
On October 6, 2001, Mills was accepted into the long-term disability benefits program based on her "mental/nervous" condition. In a letter dated October 11, 2001, Hartford Life notified Mills that she had been approved for long-term disability benefits for twenty-four months, beginning October 6, 2001. (Docket Entry No. 55, Ex. A-6). On October 25, 2001, Mills sent an email to Michelle Stevens, a human resources adviser at BMC, asking BMC to transfer her to a position outside Gahagan's unit rather than terminating her employment. (Docket Entry No. 55, Ex. A-8). The same date, BMC sent Mills a letter, stating that Hartford Life had notified BMC that Mills was approved for long-term disability benefits as of October 6, 2001 and that Mills's employment had terminated "as a result of [her] long-term disability as of the October 6, 2001 approval for [her] LTD." (Docket Entry No. 55, Ex. A-2). Mills asserts that BMC terminated her employment only after October 25, 2001, when she requested a transfer to a different supervisor.
Mills was approved for only twenty-four months of long-term disability benefits because BMC "s policy limited benefits for mental illness to twenty-four months. (Docket Entry No. 55, Ex. 15, p. 8). Hartford Life could not determine the monthly amount of benefits that Mills would receive until October 17, 2001, when they received necessary information from BMC.
Mills alleges that when BMC terminated her employment, it violated the Americans with Disabilities Act ("ADA") because Mills was disabled and had requested an accommodation, which BMC refused. (Docket Entry No. 55, p. 2). Mills asserts that suitable accommodations would have included modifying her work schedule, providing additional unpaid leave, or reassigning her to a vacant position. (Id. at 8). Mills also asserts that she did not receive the full twenty-six weeks of short-term disability benefits to which she was entitled. Mills also alleges that her "termination for disability under the LTD plan was a pretext for discrimination and retaliation for having opposed illegal practices." (Docket Entry No. 55, p. 26).
BMC has moved for summary judgment as to Mills's claims of race and disability discrimination, retaliation, and intentional infliction of emotional distress. BMC's arguments and Mills's responses are analyzed below.
II. The Applicable Legal Standards
A. The Summary Judgment Standard
Summary judgment is appropriate if no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. See FED. R. CIV. P. 56. The moving party bears the initial burden of "informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Norman v. Apache Corp., 19 F.3d 1017, 1023 (5th Cir. 1994). The party moving for summary judgment must demonstrate the absence of a genuine issue of material fact, but need not negate the elements of the nonmovant's case. See Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc). If the moving party fails to meet its initial burden, the motion for summary judgment must be denied, regardless of the nonmovant's response. See id.
When the moving party has met its Rule 56(c) burden, the nonmovant cannot survive a motion for summary judgment by resting on the mere allegations of its pleadings. See McCallum Highlands, Ltd. v. Washington Capital Dus, Inc., 66 F.3d 89, 92 (5th Cir. 1995). The nonmovant must go beyond the pleadings and designate specific facts showing that there is a genuine issue for trial. See Little, 37 F.3d at 1075 (citing Celotex, 477 U.S. at 325).
"[W]hen a district court denies a motion for summary judgment on the basis that there exist genuine issues of material fact, the district court is actually making two separate conclusions: "First, the court has concluded that the issues of fact in question are genuine, i.e., the evidence is sufficient to permit a reasonable factfinder to return a verdict for the nonmoving party. Second, the court has concluded that the issues of fact are material, i.e. resolution of the issues might affect the outcome of the suit under governing law.'" Lemoine v. New Horizons Ranch Ctr., Inc., 174 F.3d 629, 633 (5th Cir. 1999) (quoting Colston v. Barnhart, 146 F.3d 282, 284 (5th Cir. 1998)).
In deciding a summary judgment motion, "[t]he evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). "Summary judgment should be used "most sparingly in . . . First Amendment case[s]. involving delicate constitutional rights, complex fact situations, disputed testimony, and questionable credibilities." Benningfield v. City of Houston, 157 F.3d 369 (5th Cir. 1998) (quoting Porter v. Califano, 592 F.2d 770, 778 (5th Cir. 1979)). "Rule 56 "mandates the entry of summary judgment, after adequate time for discovery, and upon motion, 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.'" Little, 37 F.3d at 1075 (quoting Celotex, 477 U.S. at 322).
B. The Title VII and Section 1981 Discrimination Standard
"Claims of racial discrimination brought under § 1981 are governed by the same evidentiary framework applicable to claims of employment discrimination brought under Title VII." Harrington v. Harris, 108 F.3d 598, 605 (5th Cir. 1997); see also LaPierre v. Benson Nissan, Inc., 86 F.3d 444, 448 n. 2 (5th Cir. 1996). Under Title VII, it is unlawful for any employer "to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to . . . compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2 (a)(1)(1988). "A plaintiff who can offer sufficient direct evidence of intentional discrimination should prevail, just as in any other civil case where a plaintiff meets his burden." Nichols v. Loral Vought Sys. Corp., 81 F.3d 38, 40 (5th Cir. 1996). "However, because direct evidence of discrimination is rare, the Supreme Court has devised an evidentiary procedure that allocates the burden of production and establishes an orderly presentation of proof in discrimination cases." Id. at 40; Bodenheimer v. PPG Indus., Inc., 5 F.3d 955, 957 (5th Cir. 1993).
Under Title VII and section 1981, the plaintiff carries the initial burden of establishing a prima facie case of discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 801, 802 (1973); Hall v. Gillman Inc., 81 F.3d 35, 37 (5th Cir. 1996); Wallace v. Texas Tech. Univ., 80 F.3d 1042, 1047 (5th Cir. 1996). To do so, a plaintiff must show that: 1) she is a member of a protected class; 2) she suffered an adverse personnel action; and 3) the action was motivated by the discrimination. Id.
If a plaintiff makes a prima facie showing, the burden shifts to the defendant to articulate a "legitimate, nondiscriminatory reason" for the adverse employment decision. Burdine, 450 U.S. at 254. If a defendant can produce such evidence, the plaintiff then must "prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons." Id. at 253.
C. The Title VII and Section 1981 Retaliation Standard
Title VII forbids an employer from discriminating against an employee because the employee "opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter." 42 U.S.C. § 2000e-3. Section 1981 also forbids this conduct. Under both statutes, the plaintiff carries the initial burden of establishing a prima facie case of retaliation. The Fifth Circuit applies the burden-shifting structure to claims of unlawful retaliation under Title VII and section 1981. See Long v. Eastfield Coll., 88 F.3d 300, 304-05 (5th Cir. 1996); McMillan v. Rust Coll., Inc., 710 F.2d 1112, 1116 (5th Cir. 1983). A plaintiff establishes a prima facie case for unlawful retaliation by proving that: (1) she engaged in activity protected by Title VII; (2) an adverse employment action occurred; and (3) a causal link existed between the protected activity and the adverse employment action. See Long, 88 F.3d at 304; McMillan, 710 F.2d at 1116.
"The ultimate issue of retaliation requires the employee to prove that the adverse employment action would not have occurred `but for' the protected activity." Sherrod v. American Airlines, Inc., 132 F.3d 1112, 1122 n. 8 (5th Cir.), aff'd after remand, 163 F.3d 1356 (5th Cir. 1998) (citing Long, 88 F.3d at 308). "`[E]ven if a plaintiffs protected conduct is a substantial element in a defendant's [adverse employment] decision. . . . no liability for unlawful retaliation arises if the [same decision would have been made] even in the absence of the protected conduct.'" Vadie, 218 F.3d at 374 (quoting Long, 88 F.3d at 305 n. 4) (brackets in original).
III. The Claims of Discrimination and Retaliation in the Transfer Decision
BMC asserts that some of Mills's claims are time-barred under Title VII. In Texas, a Title VII plaintiff must file an EEOC charge within 300 days of the alleged unlawful employment action. See Webb v. Cardiothoracic Surgety Assocs. of N. Texas, P.A., 139 F.3d 532, 537 (5th Cir. 1998). A plaintiff cannot extend this deadline based on a continuing violation theory if the challenged practice consists of discrete acts, such as the failure to hire or promote, demotions, or terminations. Celestine v. Petroleos de Venezuella SA, 266 F.3d 343, 352 (5th Cir. 2001). Mills filed her EEOC complaint on May 9, 2001. She complains of the following discrete acts that fall outside the 300-day period: the website incident on April 12, 2000 (391 days); the transfer on May 12, 2000 (362 days); Gahagan told Mills that she could not interview with Durst's group or for other positions inside one year on June 13, 2000 (330 days). BMC acknowledges that Mills's claim for failure to promote to the vice-president position filled by Klemm is not time-barred. (Docket Entry No. 48, p. 10). This court acknowledges that some of the claims are time-barred under Title VII. However, they are appropriately considered under section 1981, which has a two-year statute of limitations period. Byers v. Dallas Morning News, 209 F.3d 419, 424 (5th Cir. 2000).
A. The Claim of Discriminatory Transfer
Mills alleges that her transfer to the position of quality assurance was a demotion, and that Dew, a white male, was given her former position. Assuming that Mills has made a prima facie showing of race discrimination, Mills has not presented evidence raising a fact issue as to whether BMC's legitimate nondiscriminatory reasons for the reorganization and transfer were a pretext for racial discrimination.
BMC has presented competent summary judgment evidence as to the reorganization that created the director of quality assurance position Mills received, and the specific reasons Mills was selected as the director. BMC asserts that the creation of a quality assurance department was part of a reorganization that Nichols began to plan three months before Mills's complaint and was approved once BMC had hired a vice-president for the business unit. BMC asserts that it chose Mills as the director because of her particular skills and strengths. Nichols testified: "I needed someone who was highly organized. I needed somebody that had BMC product management experience, and I needed someone that I felt could get the job done." (Docket Entry No. 28, Ex. D, pp. 91-92). Nichols testified that he considered all his directors, but only Mills had the skills he was looking for. (Id.). Jacques testified that she suggested Mills for the position "because of her strengths and skills." (Docket Entry No. 35, Ex. 17, p. 13).
Mills has acknowledged that she had experience in quality assurance and the skills BMC needed for the newly created quality assurance position. (Docket Entry No. 28, Ex. A, p. 23, pp. 50-51). Mills has not identified other individuals who were available and had the requisite skills and experience for the position. Mills has not presented evidence that controverts BMC's proffered reasons for the reorganization and transfer.
Mills points to the absence of a personnel transaction form, which BMC uses when an employee is transferred, as evidence that BMC's proffered reason was a pretext for discrimination. BMG submitted an affidavit from Lisa De La Garza, a BMC human resources employee, stating that no form is filled out when, as here, a transferring employee's compensation and organizational group do not change. (Docket Entry No. 39, Ex. B). Mills has not presented or identified facts disputing these statements.
Mills asserts that the Conyers Group influenced Nichols's decision to reorganize and to place Mills in the quality assurance position. BMC has presented undisputed summary judgment evidence that the reorganization decision had no connection with Mills's complaints about the Conyers Group. Mills identified Nichols and Jacques as the ones primarily responsible for the decision to transfer her. Mills has not presented facts showing that either Jacques or Nichols was involved in the website incident, the only incident that Mills identifies that is overtly racial. Mills has not presented or identified facts showing that Dew, who was involved in the website incident, had any involvement in the decision to transfer her. It is undisputed that Gahagan approved the reorganization. Mills has not presented or identified facts showing that Gahagan was involved in the website incident. The website incident, involving individuals who were not primarily responsible for the challenged transfer decision, is insufficient to support an inference that BMC's asserted justification for transferring Mills to the position of director of the newly created quality assurance group was a pretext for race discrimination. See Rios v. Risotti, 252 F.3d 375, 379-80 (5th Cir. 2001); Shackelford v. Deloitte Touche, LLP, 190 F.3d 398, 405 (5th Cir. 1999).
Evidence in the summary judgment record indicates that Gahagan was not hired until after the website incident occurred. Dew showed Mills the website on April 11, 2000; BMC hired Gahagan on April 17, 2000.
Mills argues that the absence of a significant number of black employees at BMC at or above the director level, and Gahagan's failure to promote non-white, non-male individuals to positions at or above the director level, supports an inference that the reason for her transfer was a pretext for racial discrimination. Mills has not presented specific or sufficient information that would support the inference she asserts. There is no information comparing qualified applicants with those selected for promotion at BMC. Mills's references to other incidents of discrimination at BMC, which are vague and remote in time, and conclusory statements as to BMC's promotion procedures generally, are insufficient to raise a disputed fact issue as to whether BMC's nondiscriminatory explanation for transferring Mills was a pretext for racial discrimination. See Rios, 252 F.3d at 379 (plaintiffs and coworkers' affidavits stating that work atmosphere was hostile toward Hispanic employees insufficient to raise fact issue as to defendant's nondiscriminatory reason for challenged employment action); Byers v. Dallas Morning News, Inc., 209 F.3d 419, 427 (5th Cir. 2000) (subjective belief inadequate to preclude summary judgment) (citing Hornsby v. Conoco, Inc., 777 F.2d 243, 247 (5th Cir. 1985)); Shackelford, 190 F.3d at 405 (general allegations of plaintiff and coworker that they had witnessed or suffered discrimination in defendant's workplace "too speculative and reliant on isolated incidents to survive summary judgment").
This court finds that even assuming that Mills has made a prima facie showing of race discrimination, based on her transfer in May 2000, she has failed to present evidence creating a disputed issue of fact material to determining whether BMC's proffered reason for the transfer was a pretext for discrimination. This court GRANTS BMC's motion for summary judgment as to the claims against it for race discrimination, based on the decision to transfer Mills to the position of director of quality assurance.
B. The Claims of Retaliatory Transfer
BMC argues that Mills's retaliation claim fails as a matter of law because the transfer was not an adverse employment action; Mills has failed to show a causal connection between the transfer and her protected conduct; and Mills has failed to present evidence of pretext.
1. Whether There Was an Adverse Employment Action
The Fifth Circuit has held that only "ultimate employment decisions," such as hiring, granting leave, discharging, promoting, and compensating, satisfy the "adverse employment action" element of a prima facie case of retaliation. Watts v. Kroger Co., 170 F.3d 505, 512 (5th Cir. 1999); Mattern v. Eastman Kodak Co., 104 F.3d 702, 708 (5th Cir. 1997); Dollis v. Rubin, 77 F.3d 777, 781-82 (5th Cir. 1995). Mills relies on cases decided under section 1983, which the Fifth Circuit has interpreted to apply to a broader range of employment actions than the anti-retaliation provisions of Title VII and section 1981. See, e.g., Sharp v. City of Houston, 164 F.3d 923, 933 (5th Cir. 1999); Forsyth v. City of Dallas, 91 F.3d 769, 774 (5th Cir. 1996); Click v. Copeland, 970 F.2d 106, 109 (5th Cir. 1992). Even in that context, "a plaintiffs subjective perception that a demotion occurred is not enough." Forsyth, 91 F.3d at 774.
Mills argues that she and other employees considered the quality assurance position to be less prestigious than her former position. Mills relies on Sharp, in which the court stated that under section 1983, a transfer could be a demotion if "the new position proves objectively worse — such as being less prestigious or less interesting or providing less room for advancement," relying on Forsyth and Click. 164 F.3d at 933 (citing Forsyth, 91 F.3d at 774; Click, 970 F.2d at 109). However, in Serna v. City of San Antonio, another case decided under section 1983, the court distinguished Click and Forsyth and held that a job transfer without an accompanying decrease in compensation or other objective evidence of a demotion was not an adverse employment action. 244 F.3d 479, 485 (5th Cir. 2001).
In Serna, a police officer had been transferred from the downtown bike patrol to a regular patrol unit and his shift changed from the first night shift, ending at 2:00 a.m., to the second night shift, ending at 6:30 a.m. The employee showed that he, and some other officers, considered the bike unit more prestigious and desirable than the regular patrol unit, but he did not show that the new position was "objectively worse." Unlike the employees in Click and Forsyth, the employee in Serna did not present evidence that, viewed objectively, the job transfer was a form of discipline or involved a reduction in responsibility, pay, or benefits. 244 F.3d at 485.
Mills also relies on Harris v. Victoria Indep. Sch. Dist., 168 F.3d 216, 220-21 (5th Cir. 1999), which also involved claims under section 1983 that job transfers intended as, and objectively viewed as, a form of discipline, were adverse employment actions. Harris, 168 F.3d at 221. Mills has not presented any similar evidence in this case that her transfer had any objective indicia of a disciplinary action. Under the anti-retaliation provisions of Title VII and section 1981, even a disciplinary action, such as a reprimand, is not an adverse employment action unless it rises to the level of an "ultimate employment action." Mattern, 104 F.3d at 708.
Mills has not alleged or presented facts showing that BMC transferred employees from product development to quality assurance as a form of discipline. Mills does not dispute that the quality assurance position had the same title, pay, and benefits as her former position. The new position increased the number of people Mills supervised from twenty to sixty; in this newly created position, her responsibilities increased, if anything.
Mills argues that the quality assurance position was less respected and was an "embarrassing demotion," requiring her to "serve" the product development group, including David Dew. (Docket Entry No. 35, pp. 18, 20). Mills testified that people at BMC viewed quality assurance as a "service" position. (Docket Entry No. 28, Ex. A, p. 130). Mills testified that she viewed the quality assurance position as less important than her prior position because quality assurance is not responsible for "setting the direction as to how products are built or working with . . . anybody outside of BMC to help make profit for the company," and quality assurance `is required to react only if told to react by development.' (Id. at 129-30). Mills also testified that Gahagan stated at one time that "if [he] could, [he] would do without [quality assurance]." (Id. at 130).
One witness stated that moving from product development to quality assurance is "generally viewed as a demotion at BMC," that product development is "more glamorous . . . and receives more credit for successes achieved." (Docket Entry No. 35, Ex. 24, ¶ 5). Another witness stated that quality assurance "is not respected at BMC"; she knew people who wanted to move from quality assurance to product development, but not vice-versa. (Id., Ex. 23, ¶ 17).
It is unclear whether Gahagan meant that he did not like dealing with the quality assurances aspect of BMC's business or that he considered it to be an unimportant part of the business.
BMC vigorously disputes Mill's characterization of the facts relating to quality assurance generally and the new director position in particular. Gahagan explained that BMC intended to create a quality assurance organization to serve as "a focus and an important statement that quality was very important." (Docket Entry No. 28, Ex. G, pp. 65). Indeed, Mills's description of the quality assurance position in her Third Amended Complaint conflicts with her assertion that the position was not "important." Mills acknowledged that she held the highest position in the quality assurance and commercialization organization, which she described as "a very complex . . . organization, with responsibility for Quality Assurance for the entire Distributed Systems division of the business unit and developing a common installation, project management and commercialization/delivery." (Docket Entry No. 47, ¶ 13).
In Harlston v. McDonnell Douglas Corp., 37 F.3d 379 (8th Cir. 1994), the plaintiff, a secretary, alleged that she was reassigned to a different secretarial job, during a reduction in force, in retaliation for having filed a discrimination complaint. The Eighth Circuit affirmed the district court's grant of summary judgment to the employer, holding that the plaintiff failed to show that her reassignment was an adverse employment action. The plaintiff alleged that the reassignment was "adverse" because it involved fewer secretarial duties and was more stressful than her former position. Like Mills, the plaintiff in Harlston suffered no diminution in title, salary, or benefits. The court held that "[c]hanges in duties or working conditions that cause no materially significant disadvantage, such as [the plaintiffs] reassignment, are insufficient to establish the adverse conduct required to make a prima facie case." Id.
A plaintiff does not make a prima facie case "by showing only that a job transfer [caused] personal inconvenience or altered job responsibilities." Flaherty v. Gas Research Instit., 31 F.3d 451, 456 (7th Cir. 1994) (citing Crady, 993 F.2d at 136). The fact that a reassignment or transfer may bruise a plaintiffs ego or feel "humiliating" is not sufficient to establish a materially adverse employment action. Serna, 244 F.3d at 485; Flaherty, 31 F.3d at 457. A change in reporting relationships does not, in itself, establish an adverse employment action. See Flaherty, 31 F.3d at 456 (transferring employee to different position, with same level of salary and benefits, comparable responsibilities, and greater growth potential, not adverse employment action under the ADEA, even where employee had to report to former subordinate rather than to senior vice-president).
Mills argues that the fact that she received a $15,000.00 bonus when she accepted the quality assurance position shows that it was a demotion. Gahagan testified that he suggested the $15,000.00 bonus for Mills's agreement to move to the new position, "to ensure that she felt like she was a valuable member of the team." (Id. at 57-58). Nichols told Gahagan that he "wanted to reward [Mills] because she said that she would [move to quality assurance] for the good of the company." (Id. at 64). Mills points to another employee, Dan Hoffman, was also received a $15,000.00 bonus. Mills asserts that Hoffman received the bonus because he was demoted. BMC disputes Mills's characterization of the facts in the summary judgment record. Gahagan testified that Hoffman had been a director before the reorganization and had only been acting as a vice-president. After the reorganization, BMC hired a vice-president and Hoffman continued to work as a director. Gahagan acknowledged that while Hoffman may have "perceived" the reorganization as a demotion, it was not. (Docket Entry No. 28, Ex. G, pp. 64-65). Mills's argument that her receipt of a bonus with her transfer shows that the transfer was a demotion is without support in the record or the case law.
Mills argues that the director of quality assurance position presented fewer opportunities for promotion than her former position in product development. Mills submitted affidavits from former coworkers who stated that BMC promoted people from product development rather than from quality assurance. BMC responds that these individuals had no basis to compare the promotional opportunities available in quality assurance and product development after the reorganization. Before the reorganization, the quality assurance function was dispersed across different groups. The unified quality assurance department was new in Mills's business unit. It had no established record, one way or the other, of promotional opportunities.
A few witnesses stated that promotions "go through" product development, not quality assurance. (Docket Entry No. 35, Ex. 24, ¶ 6; Ex. 23, ¶ 17). Another witness stated that product development was "more prestigious" and had a "faster promotional track" than quality assurance. (Id., Ex. 10, ¶ 6).
BMC has submitted an affidavit, stating that none of these witnesses had supervised directors at BMC, none had personal knowledge of the director position that Mills was asked to fill, and none had personal knowledge sufficient to compare the prestige, status, or promotional opportunities of Mills's new position, after the reorganization, with Mills's former position. (Docket Entry No. 28, Ex. L).
Even assuming the transfer had the potential to impact Mills's future promotional opportunities, that is only a "tangential effect" on an ultimate employment decision and is not, itself, an actionable ultimate employment decision. The Fifth Circuit has held that the anti-retaliation provision of Title VII was intended to address only ultimate employment actions, not to address "`every decision made by employers that arguably might have some tangential effect upon these ultimate decisions.'" Watts, 170 F.3d at 511 (quoting Mattern, 104 F.3d at 707). In Mattern, the court explained that "Title VII's anti-retaliation provision refers to ultimate employment decisions, and not to an "interlocutory or mediate' decision which can lead to an ultimate decision." 104 F.3d at 708.
In Mattern, the court considered whether a verbal threat of being fired, a reprimand, a missed pay increase, and a "final warning" amounted to "adverse employment actions" actionable under Title VII's anti-retaliation provision. 104 F.3d at 708. The court stated that these actions "do not constitute "adverse employment actions' because of their lack of consequence." 104 F.3d at 708.
In Burger v. Central Apartment Mgmt., 168 F.3d 875 (5th Cir. 1999), the plaintiff argued that his employer's refusal to transfer him to the same position at a different location was an adverse employment action under the anti-retaliation provision of Title VII. The court noted that the plaintiff could have argued, but did not, "that the transfer he sought was not purely lateral because the position at [the desired location] was more secure." Id. at 880. However, "even this argument would fail," because "a retaliation claim cannot be based solely on a defendant's act of "limit[ing]' an employee "in any way which would deprive [that employee] of employment opportunities or otherwise adversely affect his status as an employee.'" Id. at 878-79 (quoting 42 U.S.C. § 2000e-2 (a)(2)). "Transferring an employee to a less secure (but otherwise similar) position is obviously an "interlocutory or mediate decision which can lead to an ultimate termination,'" and, as such, is not protected under Title VII's anti-retaliation provision. Id. at 880 (quoting Mattern, 104 F.3d at 708).
The court noted that if the employer had denied the transfer request, had lost the contract, and had terminated the employee, the employee might have a "cognizable anti-retaliation claim." Burger, 168 F.3d at 880. The employee would still have to show that his termination was causally related to his having engaged in protected activity. Here, Mills alleges that she was denied promotions after being transferred to the position of director of quality assurance. Those claims are addressed, below, as claims for failure to promote.
Mills has failed to present or identify facts showing that her transfer was an adverse employment action under Title VII's anti-retaliation provision. Viewed in the light most favorable to Mills, the summary judgment evidence shows that Mills, and some former coworkers, viewed her transfer, subjectively, as a demotion; that Mills did not find the quality assurance job as interesting or as prestigious; and that Mills feared that the transfer could negatively affect her chances for promotion in the future. Under established law, Mills has not shown that her transfer was an ultimate employment action. Summary judgment on her retaliatory transfer claim is appropriate on this basis.
2. Evidence of Pretext
Even assuming that Mills had made a prima facie showing of retaliation, BMC asserts that Mills has failed to raise a fact issue as to whether BMC's proffered reason for the transfer was pretextual. "[O]nce the employer offers a legitimate, nondiscriminatory reason that explains both the adverse action and the timing, the plaintiff must offer some evidence from which the jury may infer that retaliation was the real motive." Swanson, 110 F.3d at 1188. To meet this burden, the plaintiff must demonstrate that the employment action would not have occurred "but for" engaging in protected activity. Medina v. Ramsey Steel Co., Inc., 238 F.3d 674, 685 (5th Cir. 2001) (citation omitted). At this stage, the analysis is "more stringent" than the "causal link" step in the prima facie case. Id. "The plaintiff must reveal "a conflict in substantial evidence on the ultimate issue of retaliation in order to withstand a motion for summary judgment.'" Id. (quoting Sherrod, 132 F.3d at 1122).
In Swanson, the plaintiff had been transferred to a different office, one month after a hearing on his discrimination claims and one day after the plaintiff had indicated that he intended to continue to prosecute his discrimination claims. 110 F.3d at 1188. The court noted that the plaintiff had not offered evidence showing that the decisionmaker was aware of his intent to continue prosecution of his claims. However, the court proceeded as though the plaintiff had established a prima facie case, based on the timing of his protected conduct and transfer. The employer asserted that the plaintiff was transferred as part of a reorganization of his former office, which had "inadequate work" to support the plaintiffs position. Id. The employer testified that he had planned the reorganization for more than a year but had waited until after the hearing so that the transfer would not interfere with the hearing. The evidence showed that although the plaintiff was the only person transferred to a different office, the reorganization affected other management personnel in his office. The plaintiff did not present evidence showing that other managers in his office also had insufficient work but were not transferred. Id. The court reversed the jury's verdict, holding that the plaintiff had failed to present sufficient evidence of pretext.
In this case, as in Swanson, Mills has alleged that BMC transferred her shortly after she complained of discrimination. Like the employer in Swanson, BMC has presented undisputed evidence that Mills's transfer was part of a reorganization that was planned, although not yet approved, three months before Mills first complained. (Docket Entry No. 35, Ex. 18, p. 87). Like the employer in Swanson, BMC has presented undisputed evidence as to the non-retaliatory purpose of the reorganization. Nichols testified that one purpose of the reorganization was to address problems his unit had experienced with quality assurance. (Docket Entry No. 35, Ex. 18, p. 91). Gahagan testified that the purpose of creating a quality assurance group was to create "a focus and an important statement that quality was very important," to "drive the cost down for quality by getting economies of scale," and "to create synergy within the quality organization, having multiple people do quality work working together and to ensure that we had flexibility to move." (Docket Entry No. 28, Ex. G, pp. 65-66). Mills does not dispute these reasons for the reorganization. Mills does not dispute that the reorganization affected nearly two hundred and fifty other BMC employees, including the Conyers Group. Nor does Mills dispute her own qualification for the new position.
Mills asserts that David Dew was "promoted" to her former position as a result of the reorganization. However, Mills does not dispute that while some of Mills's former duties were assigned to Dew, other partes of her former job were assigned to other people. Mills does not dispute that Jacques's transfer reduced her responsibilities and her position in the corporate hierarchy. Mills acknowledges that Jacques viewed her own job change as a demotion.
Mills's claim for retaliation based on her transfer to the position of director of quality assurance fails, as a matter of law, because Mills has failed to show that she suffered an adverse employment action. Mills also has failed to present evidence creating a disputed issue of fact material to determining whether BMC's legitimate, nonretahatory reason for the transfer was a pretext for retaliation. This court GRANTS BMC's motion for summary judgment as to the claims for retaliatory transfer.
IV. The Claims of Discrimination and Retaliation in the Failure to Receive Promotions
Mills asserts that after she transferred to quality assurance, Gahagan failed to consider her for four promotions on the basis of her race and/or in retaliation for complaints of racial discrimination. Mills asserts that Gahagan failed to consider her for promotion to the positions of (1) vice-president, a position filled by Klemm; (2) vice-president and general manager of patrol e-business solutions, a position filled by Paul Barker; (3) vice-president and general manager of patrol network management, a position filled by Andy Burger; (4) vice-president and general manager of patrol platform solutions, a position filled by Carl Coken. (Docket Entry No. 42, p. 11). In her Third Amended Complaint, Mills appears to have limited her failure to promote claim to the vice-president position filled by Klemm. Mills has not described the requirements or responsibilities of the other vice-president positions, the other candidates, or who made the hiring decisions for those positions. Mills has not provided anything more than her own conclusory assertion that she was more qualified than the people BMC hired for those positions. (Docket Entry No. 35, p. 33). Either Mills has abandoned her claims as to those positions, or her failure to allege or provide sufficient facts to present a prima facie claim requires summary dismissal of those claims.
Mills initially asserted claims for failure to promote based on Gahagan's refusal to permit her to interview for the director of product development position in Joyce Durst's group and for similar director positions that became open. BMC asserted that none of these positions were "promotions" because they had the same title, pay, benefits, and level of responsibilities. (Docket Entry No. 35, p. 29). In her reply brief. Mills limited her failure to promote claims to the vicepresident positions. (Docket Entry No. 42, p. 7). This court agrees that Mills cannot state a failure to promote claim based on failure to consider her for director positions, which were not promotions.
Mills alleges that after she complained of the website incident and her poor treatment by the Conyers Group, she was transferred and "locked in" to her new position because Gahagan would not consider her for promotions or transfer. Mills argues that she need not show that she was objectively more qualified than Klemm for the vice-president position because Gahagan used "subjective criteria" to evaluate the candidates. However, Mills also asserts that she has presented sufficient evidence that she was qualified for the position. BMC argues that Mills's failure to promote claims fail, as a matter of law, because Mills has failed to present evidence of pretext.
To state a prima facie claim for discriminatory failure to promote, the plaintiff must show that: (1) she belongs to a protected class; (2) she applied to and was qualified for a position for which applicants were being sought; (3) she was rejected, and (4) another applicant not belonging to the protected class was hired. Medina v. Ramsey Steel Co., Inc., 238 F.3d 674, 681 (5th Cir. 2001). The elements of a retaliatory failure to promote claim are the same as for a retaliation claim generally. See Thomas, 220 F.3d at 394.
The Fifth Circuit has acknowledged that while subjective criteria for promotion "`may serve legitimate functions, they also provide opportunities for unlawful discrimination' because the criteria itself may be pretext for discrimination." Medina, 238 F.3d at 681 (quoting Lindsey v. Prive Corp., 987 F.2d 324, 326 (5th Cir. 1993)). A prima facie showing is made if the plaintiff demonstrates that she met objective qualifications for the position. Id. The parties dispute whether Mills was as qualified as the person chosen. However, BMC has not asserted that Mills lacked the minimum, objective qualifications for the position. Although a plaintiff usually must show that she applied for a position, such a showing is not required if application would have been futile. Shackelford, 190 F.3d at 406. Mills does not allege that applying would have been futile, but rather that she did not know to apply because BMC did not post the position. Mills's failure to apply for a position that BMC did not advertise, given that Mills had expressed that she wished to be considered for promotions generally, is not fatal to her claim. This court assumes that Mills has made a prima facie showing on her failure to promote claims.
BMC proffers two reasons for selecting Klemm for the vice-president position. Both reasons would have led BMC to select Klemm even if Mills had also sought the promotion. Klemm had prior experience in managing a large organization, that Mills lacked. (Docket Entry No. 48, p. 8, n. 4). BMC did not consider Mills eligible for the promotion because she had just assumed the position of director of the new quality assurance department. BMC needed her in that position to ensure a successful beginning for the new department. (Docket Entry No. 48, p. 8 n. 4).
Mills asserts that Gahagan did not consider Mills and did not know her qualifications when he decided to hire Klemm. Mills argues that an expost comparison of Mill's qualifications is insufficient to explain why she was not considered for the position. BMC's second reason explains why Gahagan did not consider Mills for the position. The evidence as to Mills's qualifications goes to whether BMC would have hired Mills had it considered her for the position.
Once the defendant has offered a legitimate, nondiscriminatory and nonretahatory reason for its decision, the question is whether the evidence supports an inference that BMC's proffered explanation was a pretext for discrimination or retaliation. See Evans, 246 F.3d at 355; Pratt v. City of Houston, 247 F.3d 601, 606 (5th Cir. 2001). It is undisputed that when Joyce Durst, another vice-president, asked if she could interview Mills for a director position in her business unit shortly before the vice-president position became available, Gahagan told Durst that he did not want Mills to interview for any position because she was too valuable to his organization. (Docket Entry No. 35, p. 10; Docket Entry No. 35, Ex. G, pp. 9 1-92). Gahagan told Mills that he understood that BMC's policy precluded her from transferring to a new position until she had been in her current position for one year. (Id. at 90-92). Mills disputes that this policy existed or applied to her. However, even in the absence of a formal policy, Gahagan has asserted legitimate business reasons to keep Mills from transferring to a new position in BMC for some period. Mills had recently assumed the position of director of a new department and Gahagan needed Mills's particular skills and talents in the newly organized department.
BMC has submitted a written policy, called "Careers at BMC Software" or "CAB", as part of the summary judgment record. This policy states that when an employee transfers into a new position, the employee must stay in that position for twelve months before being eligible for another transfer. (Docket Entry No. 39, Ex. B-1). The policy identifies August 1, 2000 as its effective date. Mills asserts that the policy was not in effect when Klemm was hired and that the policy only applies to employees who have taken voluntary, as opposed to involuntary, transfers.
Mills has not disputed either of Gahagan's stated reasons for not considering her for promotion almost immediately after she transferred to the new director of quality assurance position. Mills has not alleged or presented facts showing that other individuals at BMC were qualified and available to assume the position of director of quality assurance. Mills has not alleged or presented facts disputing Gahagan's reasonable, good faith belief that he needed to keep Mills in the newly created position for some time to provide stability and support for the newly created department.
As evidence of pretext, Mills asserts that Gahagan "has taken full advantage of BMC's subjective system to discriminate against Mills and other qualified minorities seeking promotion into upper-level positions," by promoting only white males to director level positions. (Docket Entry No. 35, p. 30). Mills submits the affidavit of a former BMC employee, stating that she believed Gahagan discriminated against black employees. (Id.; Ex. 23, ¶ 14). Mills also asserts that Gahagan "lied" to her by stating that BMC had a policy prohibiting transfer within one year of occupying a new position. (Id. at 31).
A promotion or hiring system that relies on some subjective factors in making personnel decisions does not, in itself raise a fact issue as to pretext. The summary judgment record discloses no basis to support an inference that Gahagan used subjective criteria as a pretext for discrimination or retaliation against Mills. Medina, 238 F.3d at 682. Conclusory statements in affidavits from Mills and a former BMC employee are insufficient to create a fact issue as to pretext. See Rios, 252 F.3d at 379; Shackelford, 190 F.3d at 405. Mills's subjective belief that she was discriminated or retaliated against is insufficient to preclude summary judgment. See Byers v. Dallas Morning News, Inc., 209 F.3d 419, 427 (5th Cir. 2000) (citing Hornsby v. Conoco, Inc., 777 F.2d 243, 247 (5th Cir. 1985)). Mills's assertion that Gahagan "lied" about BMC's policy is without support in the record. Although the written policy BMC produced was not effective until August 2000, Mills has not presented evidence disputing that BMC observed a similar policy before that time or that Gahagan reasonably and in good faith believed that BMC followed such a policy.
Mills has not identified or presented evidence creating a genuine issue of fact material to determining whether BMC's legitimate, nondiscriminatory and nonretahatory reason for not considering Mills for the vice-president position was a pretext for retaliation or discrimination. This court GRANTS BMC's motion for summary judgment as to Mills's failure to promote claims.
V. The Hostile Work Environment Claims
Mills asserts that beginning in 1999, the Conyers Group excluded her from meetings and communications, refused to give her requested information, and "conspired" to move Mills out of her position, amounting to a hostile work environment. (Docket Entry No. 35, p. 35). Mills asserts that the website incident was part of the hostile work environment to which she was subjected and that her supervisor, Nichols, did not act appropriately to remedy the situation. Mills asserts that Gahagan "ceased speaking to [her] after she told him she thought Dew was a racist, even, to the point of ignoring her when she passed him in the hall." (Id. at 37). Mills also asserts that Gahagan undermined her authority by having some of Mills's subordinates report directly to him; by having Mills's secretary do work for his own secretary; and by criticizing her in front of peers and subordinates on two occasions. (Id. at 37-38).
When a plaintiff complains of harassment from a supervisor, the plaintiff makes a prima facie showing on a hostile work environment claim by showing that: (1) she belongs to a protected class; (2) she was subjected to unwelcome harassment; (3) the harassment complained of was based on race; and (4) the harassment complained of affected a term or condition of employment. Celestine v. Petroleos de Venezeuella, SA, 266 F.3d 343, 353 (5th Cir. 2001). If a plaintiff complains of harassment by other, nonsupervisory, individuals, she also must show that "the employer knew or should have known of the harassment in question and failed to take prompt remedial action." Id.
"Not all harassment will affect a term, condition, or privilege of employment." Shepherd v. Comptroller of Public Accounts, 168 F.3d 871, 874 (5th Cir. 1999). "The "mere utterance of an . . . epithet which engenders offensive feelings in a employee' does not sufficiently affect the conditions of employment." Id. (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)). "A recurring point in [Supreme Court] opinions is that "simple teasing, ' offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the "terms and conditions of employment.'" Id. (quoting Faragher v. City of Boca Raton, 524 U.S. 775 (1998)) (other citation omitted). "Whether an environment is "hostile' or "abusive' is determined by looking at all the circumstances, including the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interferes with an employee's work performance." Id. (citing Harris, 510 U.S. at 23). "To be actionable, the challenged conduct must be both objectively offensive, meaning that a reasonable person would find it hostile and abusive, and subjectively offensive, meaning that the victim perceived it to be so." Id.
Even considering all of the conduct Mills alleges, notwithstanding the limitation period under Title VII, Mills has failed to identify or present facts showing abusive conduct sufficiently severe or pervasive so as to affect a term or condition of her employment. Mills's allegations as to the website incident and rudeness from a supervisor and coworkers are far less than what this circuit requires to raise a fact issue as to the presence of an actionable, racially hostile, work environment. See Walker v. Thompson, 214 F.3d 615, 626-27 (5th Cir. 2000); Huckabay v. Moore, 142 F.3d 233, 240 (5th Cir. 1998); McCray, 942 F. Supp. 288, 293 (E.D.Tex. 1996). Mills's allegations that she was not included in some meetings and emails, that Gahagan criticized her on two occasions and ignored her, and that Gahagan treated her with insufficient respect, such as by having her secretary help another secretary, do not raise an inference as to a racially hostile work environment. See Bradley v. Widnall, 232 F.3d 626, 631-32 (8th Cir. 2000); McConathy v. Dr. Pepper/Seven Up Corp., 131 F.3d 558, 564 (5th Cir. 1998).
This court finds that Mills has failed to present evidence creating a genuine issue of disputed fact material to determining whether she was subjected to severe or pervasive racial harassment or discrimination, so as to state a claim for a hostile work environment. This court GRANTS BMC's motion for summary judgment as to the hostile work environment claims.
VI. The ADA Claims
Mills argues that she was terminated on the basis of a disability; that BMC terminated her to avoid having to make a reasonable accommodation; and that she was entitled to nine more weeks of short-term disability benefits than she received.
A. Discrimination on the Basis of a Disability
To make a prima facie showing of discrimination under the ADA, a plaintiff must show that: (1) she has a disability; (2) she is a qualified individual for the job in question; and (3) an adverse employment decision was made because of her disability. Holtzclaw v. DSC Communications Corp., 255 F.3d 254, 258 (5th Cir. 2001); Hamilton v. Southwestern Bell Co., 136 F.3d 1047, 1050 (5th Cir. 1998). "The threshold issue in a plaintiffs prima facie case is a showing that [s]he suffers from a disability protected by the ADA." Hamilton, 136 F.3d at 1050. The ADA defines a "disability" as: "(1) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (2) a record of such impairment; or (3) being regarded as having such an impairment." Foreman v. Babcock Wilcox Co., 117 F.3d 800, 805 (5th Cir. 1997) (citing 42 U.S.C. § 12102 (2).
A plaintiff is disabled under the first prong if she has an impairment that substantially limits a major life activity. Mills argues that her gastrointestinal reflux and irritable bowel syndrome, aggravated by stress, substantially limited her from the major life activity of working. "`Substantially limits' generally means (i) unable to perform a major life activity that the average person in the general population can perform; or (ii) significantly restricted as to the condition, manner, or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average persons in the general population can perform the same major life activity." Foreman, 117 F.3d at 805 (citing 29 C.F.R. § 1630.2 (j)(1)). The Fifth Circuit has said that:
With regard to working, "substantially limits means significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities. The inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working."
Hamilton, 136 F.3d at 1051 (quoting 29 C.F.R. § 1630.2 (j)(3)(i)).
Mills asserts that she could have fully performed her job had BMC permitted her to work for a different supervisor and in a different group, or to work from an offsite location so that she could avoid specific people at BMC. (Docket Entry No. 55, Ex. 23-B, ¶¶ 11-14). Mills's physician, Dr. Williams, stated as follows:
I do not feel that Mildred [Mills] can return to work at BMC at this time or, indefinitely, secondary to extreme post-traumatic stress disorder brought on by her hostile work environment. I have recommended that she pursue long term disability.
(Docket Entry No. 55, Ex. C). Mills's psychiatrist, Dr. Ruth Netscher, described Mills as having "severe anxiety, gastrointestinal distress with vomitting [sic] and diarrhea during every contact with employer or their representatives, or even driving past their buildings." (Docket Entry No. 48, Ex. C). When Hartford Life asked Dr. Netscher, "When do you feel there will be a return to work," Dr. Netscher responded, "[o]nly when litigation is concluded and patient can avoid stimulation of contact with employer." (Id.).
Courts have consistently held that an inability to work with or for particular people, in itself, is not a disability under the ADA. Such a limitation does not substantially limit the ability to perform a category or broad class of jobs, but only the ability to work with a specific group of people. See, e.g., Schneiker v. Fortis Ins. Co., 200 F.3d 1055, 1062 (7th Cir. 2000)("[s]tanding alone, a personality conflict between an employee and a supervisor — even one that triggers depression — is not enough to establish that the employee is disabled, so long as the employee could still perform the job under a different supervisor"); Siemon v. ATT Corp., 117 F.3d 1173, 1176 (10th Cir. 1997) (employee not disabled under ADA where he alleged that impairment precluded him from working within a particular chain of command); Weiler v. Household Fin. Corp., 101 F.3d 519, 525 (7th Cir. 1996)("if [the plaintiff] can do the same job for another supervisor, she can do the job, and does not qualify under the ADA" as disabled); Hatfield v. Quantum Chem. Corp., 920 F. Supp. 108, 110 (S.D.Tex. 1996) (employee not disabled where "testimony shows that the only reason he could not return to work was that he would be in contact with his former supervisor" and plaintiff acknowledged that he could perform his job under a different supervisor).
Mills has not presented or alleged facts showing that her impairment prevented her from performing an entire class of jobs or a broad range of jobs. Mills has not presented or alleged facts showing that she suffered a "disability" under the ADA.
Under the second prong, a plaintiff may show that she has a "record" of having a substantially limiting impairment. The regulations state:
Has a record of such impairment means has a history of, or has been misclassified as having, a mental or physical impairment that substantially limits one or more major life activities.29 C.F.R. § 1630.2 (k). "The interpretive guidance also stresses that "[t]he impairment indicated in the record must be an impairment that substantially limits one or more of the individual's major life activities.'" Burch v. Coca-Cola Co., 119 F.3d 305, 321 (5th Cir. 1997) (quoting 29 C.F.R. § 1630, App. (1996)). "Such a record may include educational, medical, or employment records." EEOC v. Exxon Corp., 124 F. Supp.2d 987, 996 (N.D.Tex. 2000) (citing 29 C.F.R. § 1630.2 (k), App.). The provision protects individuals from discrimination based on a history of a disability or because they have been misclassified as disabled. Id.
Mills's argument that she had a record of an impairment when BMC terminated her employment rests on the premise that Mills's condition "substantially limited a major life activity," a premise not supported by this record. Mills argues that the fact that she received short-term disability benefits for six months and was approved to receive long-term disability benefits shows a record of impairment. Nothing in the record, which includes evaluations by Mills's doctors, supports a finding of a history of a substantially limiting impairment, as defined by the ADA. Neither Mills's physician nor her psychiatrist concluded that Mills could not perform the tasks required for her job or that she could not perform a broad class or category of jobs. Instead, they concluded that Mills could not work with particular people at BMC. Mills has not shown that she had a record of an impairment that substantially limited a major life activity under section 12102(2)(B) of the ADA.
Mills also argues that BMC regarded her as having a substantially limiting impairment when it terminated her employment. The Fifth Circuit has stated that:
One is regarded as having a substantially limiting impairment if the individual (1) has an impairment which is not substantially limiting but which the employer perceives as constituting a substantially limiting impairment; (2) has an impairment which is substantially limiting only because of the attitudes of others toward such an impairment; or (3) has no impairment at all but is regarded by the employer as having a substantially limiting impairment.
Burch, 119 F.3d at 322. "[A]n employer does not necessarily regard an employee as having a substantially limiting impairment simply because it believes she is incapable of performing a particular job." Ellison v. Software Spectrum, Inc., 85 F.3d 187, 192 (5th Cir. 1996). The plaintiff must show that the employer regarded her impairment as foreclosing a broad range or class of jobs. Id.; see also Foreman, 117 F.3d at 806-07; Burch, 119 F.3d at 322-23.
Mills asserts that she "was discharged because of her disability and without regard on the employer's part as to whether or not she was able to perform the essential functions of her job with a reasonable accommodation." (Docket Entry No. 55, p. 19). Mills argues that BMC considered her "totally disabled" within the terms of its long-term disability policy. (Id. at 22). Mills asserts that "total disability as used by BMC means that Mills is "prevented' from performing one or more of the essential duties of her occupation." (Id.). Mills defines her "occupation" as "executive management" and argues that BMC considered her impairment as preventing her from performing the duties of that occupation, triggering a duty to provide an accommodation. (Id.).
BMC has submitted a copy of its long-term disability policy. The policy does not use or define the term "totally disabled." Instead, the policy uses and defines the terms, "Disability or Disabled":
BMC' s benefits pamphlet states "[o]nce you are totally disabled under BMC's basic and/or supplemental LTD plans, your employment with BMC ends." (Docket Entry No. 48, Ex. A-1, p. 18). The pamphlet does not define "totally disabled."
Disability or Disabled means that during the Elimination Period and for the next 24 months you are prevented by: 1. accidental bodily injury;
2. sickness;
3. Mental Illness;
4. Substance Abuse; or
5. pregnancy,
from performing one or more of the Essential Duties of Your Occupation. . . .
After that, you must be prevented from performing one or more of the Essential Duties of Any Occupation.
(Docket Entry No. 57, Ex. A-2, p. 17). A similar definition appears in BMC's longterm disability summary plan description.
BMC's long-term disability summary plan description states that:
Disability for the LTD plan exists when, due to pregnancy, sickness or accidental injury, you are unable to perform, for wage or profit, the material and substantial duties of your own occupation. After 24 months of benefit payments, total disability exists when, due to sickness or accidental injury, you are unable to perform, for wage or profit, the material and substantial duties of any occupation for which you are reasonably qualified by your education, training or experience.
(Docket Entry No. 55, Ex. A-13, p. 4) (emphasis in original).
Hartford Life approved Mills for twenty-four months of long-term disability benefits. The policy definition of "disabled" requires that the employee be unable to perform an essential duty of his or her occupation for the elimination period and the next twenty-four months. Only after that period does the definition of disability require an employee to show the inability to perform an essential duty of "any occupation." Under the ADA, Mills must show that BMC regarded her as having an impairment that substantially limited her ability to perform a broad range or class of jobs, not just the narrow range defined by her current occupation. See Sherrod v. Am. Airlines, Inc., 132 F.3d 1112, 1120 (5th Cir. 1998) (evidence of heavy lifting restriction that disqualified plaintiff "from one job, that of flight attendant" was not disability under ADA because "disqualification from a single position or a narrow range of jobs will not support a finding that an individual is substantially limited from the major life activity of working"); Burch, 119 F.3d at 322 (defendant "must have understood [plaintiffs] alcoholism to preclude employment in an entire class of jobs"; being regarded as precluded from "employment as an area service manager with direct reporting authority over approximately twenty employees and a wide geographic area . . . falls far short of the standard") (emphasis in original); Bridges v. City of Bossier, 92 F.3d 329, 332 (5th Cir. 1996) (impairment precluding employment in any position "involving routine exposure to extreme trauma" precluded only a "narrow range of jobs"); Wooten v. Farmland Foods, 58 F.3d 382, 386 (8th Cir. 1995)("restrictions against working with meat products in a cold environment . . . only appeared to prevent [plaintiff] from performing a narrow range of meatpacking jobs"); Chandler v. City of Dallas, 2 F.3d 1385, 1392 (5th Cir. 1993)("An impairment that affects only a narrow range of jobs can be regarded either as not reaching a major life activity or as not substantially limiting one."). Mills has not shown that BMC regarded her as disabled, as defined under the ADA.
"Your Occupation" is defined as "your occupation as it is recognized in the general workplace. Your Occupation does not mean the specific job you are performing for a specific employer or at a specific location." (Docket Entry No. 57, Ex. A-2, p. 20).
"Any Occupation" is defined as "an occupation for which you are qualified by education, training, or experience, and that has an earnings potential greater than an amount equal to the lesser of the product of your Indexed Pre-disability Earnings and the Benefit Percentage for which you enrolled and the Maximum Monthly Benefit shown in the Schedule of Insurance." (Docket Entry No. 57, Ex. A-2, p. 17).
Mills has failed to present or allege facts showing that she suffered a disability, as defined under the ADA. This court GRANTS BMC's motion for summary judgment as to Mills's claim for discrimination under the ADA.
B. Failure to Make a Reasonable Accommodation
Mills argues that BMC failed to reasonably accommodate her alleged disability, in violation of 42 U.S.C. § 12112 (b)(5)(A), which provides that:
[T]he term "discriminate' includes . . . not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless [the] covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity.
"Reasonable accommodation" includes "?job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters and other similar accommodations." 42 U.S.C. § 12111(9)(B); see also 34 C.F.R. § 104.12. Mills argues that BMC could have made the following accommodations: giving Mills a position in a different work group; permitting Mills to work from an offsite location; or paying Mills short-term disability benefits for nine more weeks. (Docket Entry No. 55, Ex. 23-A).
Mills argues that BMC violated the ADA by failing to engage in an interactive process to identify a reasonable accommodation. "Once an employee has made a request for an accommodation, the ADA's regulations state that "it may be necessary for the [employer] to initiate an informal, interactive process with the qualified individual with a disability in need of the accommodation' in order to craft a reasonable accommodation." Loulseged, 178 F.3 d 731, 735 (5th Cir. 1999) (quoting 29 C.F.R. § 1630.2 (o)(3). This interactive process is not triggered until the employee requests an accommodation. Id. at 736 n. 4 ("[T]he burden is on the employee to request an accommodation."). "If the employee fails to request an accommodation, the employer cannot be held liable for failing to provide one." Taylor, 93 F.3d at 165.
It is undisputed that Mills did not request any accommodation from BMC until October 25, 2001, when she sent an email to Michelle Stevens, in BMC's human resources department. The email stated:
Rather than the proposed termination, would BMC consider providing me a comparable position within BMC but outside of Chris Gahagan's business unit. Please be aware, I am limited as a result of my medical disability and I request that BMC provide reasonable accommodations.
(Docket Entry No. 55, Ex. A-8). On October 26, 2001, Stevens sent Mills the following response:
I received your email and voicemail regarding the termination of your employment. As we have discussed several times, your employment was terminated as of the day you were accepted into long term disability pursuant to BMC' s standard policy. On Monday, October 22, 2001, 1 personally informed you that your employment had been terminated as of October 6, 2001. Also, on August 30, 2001, Amy Olivares sent you a letter stating that your employment would be terminated retroactive to your LTD approval date once we received written approval of your LTD. In September, Irma Soza also informed you that your employment would automatically terminate upon your acceptance into long term disability. In fact, on September 21, Irma sent to you a summary of how you would be impacted upon your approval of LTD, including that such approval would automatically trigger the termination of your employment. On Tuesday, October 23, 2001, you left me a message discussing the return of your computer equipment and your badge because your employment had ended. I am surprised by your email and your sudden confusion about the process as we have discussed it as such length. The receipt by you of a letter setting out again the impact of your approval into LTD has no bearing on when your termination occurred, especially in light of the numerous times you were informed. I would be happy to discuss this with you if you like. I am glad to read that you may be recovering, and you are free to apply for open positions. In the meantime, since you have not yet received additional information regarding your approval into LTD, I will make sure that such information is sent to you immediately. Please let me know if there is anything else I can help you with.
(Docket Entry No. 48, B-1, pp. 2-3). BMC has submitted copies of each of the letters to which Stevens referred. BMC also submitted an itemized list, dated October 23, 2001, and signed by Mills, describing the BMC property Mills returned. (Docket Entry No. 48, p. A-4). Mills does not dispute that she received the letters to which Stevens referred or that she returned all company property to BMC on October 23, 2001.
It is undisputed that BMC human resources employees had told Mills on a number of occasions that when and if Mills was approved for long-term disability benefits, her employment would be terminated, retroactive to the date of such approval. This also was stated in BMC's benefits policy. (Docket Entry No. 48, Ex. A-i, p. 18). BMC has submitted copies of letters sent from BMC human resources to Mills, regarding the long-term disability termination policy. See Docket Entry No. 48, Ex. A-2: Amy Olivares letter to Mills, dated August 30, 2001; Docket Entry No. 48, Ex. A-3: Irma Soza letter to Mills, dated September 20, 2001.
Mills submitted her own transcription of voice mail messages left on her answering machine. On October 22, 2001, Mills received two messages from Michelle Stevens, confirming that Mills had spoken with Stevens about scheduling the return of Mills's BMC property and picking up Mills's personal property from her office at BMC. Mills submitted a transcription of a message from Stevens on October 18, 2001, which stated that "[w]ith regard to your PTO, I calculated that . . . upon your termination, which shows that would be October 6th based on the effective date of your LTD . . ." (Docket Entry No. 55, Ex. A-20). Mills argues that this last message shows that she had not yet been terminated on October 18, 2001 but rather that when she was, the effective date "would be" October 6, 2001. (Docket Entry No. 55, p. 16). Regardless of how Mills interpreted Stevens's message, the undisputed evidence shows that Mills knew that her employment would be terminated retroactive to the date of acceptance into the long-term disability program and that Hartford Life had notified Mills, in a letter dated October 11, 2001, that she was accepted on October 6, 2001.
BMC asserts that the undisputed evidence shows that Mills had already been discharged before she first requested an accommodation and that her request was neither timely nor effective. Mills does not dispute that BMC representatives told her more than once that her employment would be terminated as of the date she was approved for long-term disability benefits. Mills does not dispute that Hartford Life accepted her into the long-term disability program on October 6, 2001 and notified her of the acceptance in a letter dated October 11, 2001. Mills does not dispute that she returned all company property to BMC before October 25, 2001. Mills does not allege that she asked for an accommodation during the six months she spent on short-term disability leave, in the numerous discussions she had with BMC' s human resources department about disability benefits.
The fact that BMC had not sent the formal letter of termination and had not instituted post-termination procedures, such as cancelling Mills's company credit card and authorizing her to sell stock or exercise options, does not show that Mills was still an employee of BMC on October 25, 2001. The undisputed evidence shows that BMC terminated Mills's employment effective on the date of her acceptance into the long-term disability program, October 6, 2001. Mills has not presented evidence raising a disputed fact issue as to whether she requested an accommodation before her employment was terminated.
Mills's argument also fails because her request to work for a different supervisor or with different people, as a matter of law, does not seek a reasonable accommodation under the ADA. See, e.g., Kennedy v. Dresser Rand Co., 193 F.3d 120, 122-23 (2d Cir. 1999) (a request for a different supervisor is presumed unreasonable); Weiler, 101 F.3d at 526 (request to return to work under a different supervisor was not reasonable accommodation; employer, not courts, has discretion to decide who would supervise employees); Wernick v. Fed. Reserve Bank of New York, 91 F.3d 379, 384 (2d Cir. 1996) (request to work for a different supervisor was not reasonable accommodation). Moreover, Mills has not shown that she had a substantially limiting impairment, a disability, as defined by the ADA. See Burch, 119 F.3d at 315 n. 4 (stating that "[w]ithout such a showing, there would be nothing for an employer to accommodate."); Taylor, 93 F.3d at 164 (stating that plaintiff must present evidence of disability and that employer knew of limitations resulting from such disability).
Mills's claims under the ADA fail because Mills has not shown an actionable disability triggering the ADA's protections; has not shown that she timely requested an accommodation or that such request was reasonable; and has failed to present evidence showing a disputed issue of fact material to determining whether her job termination violated the ADA. This court GRANTS BMC's motion for summary judgment as to the ADA claims.
Mills argues that she was entitled to receive nine more weeks of short-term disability benefits under BMC's policy. Although Mills asserts this claim under the ADA, it is appropriately considered as a breach of contract claim. Mills argues that because she returned to work on a part-time basis for more than thirty days, her twenty-six weeks should run from the last half-day she worked. Mills referred to terms in BMC's policy, but did not attach the relevant portions of the policy. BMC has submitted a copy of the entire policy, which shows that Mills's claim is without merit. The long-term disability policy states that "[a]ttempts to return to work as an Active Full-time Employee during the Elimination Period will not interrupt the Elimination Period, provided no more than 30 such return-days are taken." (Docket Entry No. 57, Ex. A-2, p. 8) The policy also states that "[a]ny day you were Actively at Work will not count towards the Elimination Period." (Id.). The definition of the term "Active Full-time Employee" states that "[t]he employee must work the normal number of hours in the Employer's normal work week." (Id. at 17). The policy states that an employee is considered "Actively at Work" on "a day which is one of your Employer's scheduled work days if you are performing, in the usual way, all of the regular duties of your job on a Full-time basis on that day." (Id.). The short-term disability policy states that "[i]f an employee recovers from the disability, returns to work, and the same or a related disability recurs within two months of the employee's return to full-time continuous service, it will be considered a continuation of the first disability." (Docket Entry No. 57, Ex. A-1, p. 2). It is undisputed that Mills worked only half days in April-May 2000. It is undisputed that after Mills left work on March 7, 2001, she did not return to work on a full-time basis on even a single day, much less thirty days, under the long-term disability policy, or two months, under the short-term disability policy. When Mills inquired about obtaining an extension for the part-time work, BMC sent a letter to Mills, dated September 20, 2001, stating that:
Although Hartford and most disability benefit providers do not extend the benefit due to partial work during the time of disability, because of the lapse of your benefits prior to notifying you, and in recognition of the fact that you worked half-time between May 3 and June 12, BMC will continue to pay your short-term disability payment for an additional three weeks. Therefore, October 5, 2001 will be the last day you are paid through short term disability. At that time, you will no longer receive a salary or a portion of salary. However, your benefits (medical, dental, etc.) will continue until LTD status is determined.
(Docket Entry No. 48, Ex. A-3). Mills has not alleged or presented facts showing that she received less than the twenty-six weeks of short-term disability benefits to which she was entitled or that she satisfied the requirements for an extension of the elimination period or the period of her eligibility for long-term disability benefits.
Mills also claims that BMC terminated her employment on the basis of race and/or in retaliation for having reported racial discrimination. Mills relies on the same evidence this court has found insufficient, as a matter of law, to create a fact issue as to pretext for her other discrimination and retaliation claims. This court GRANTS BMC's motion for summary judgment as to the claims for discriminatory and retaliatory termination.
VII. Intentional Infliction of Emotional Distress
To recover for intentional infliction of emotional distress, a plaintiff must prove that (1) the defendant acted intentionally or recklessly; (2) defendant's conduct was extreme and outrageous; (3) the defendant's actions caused the plaintiff emotional distress; and (4) the resulting emotional distress was severe. Est. of Martineau v. Arco Chem. Co., 203 F.3d 904, 913 (5th Cir. 2000) (citation omitted). "Under Texas law ordinary employment disputes are not adequate for intentional infliction claims." Id. "The range of behavior covered in "employment disputes' is quite broad . . ." Johnson v. Merrell Dow Pharmaceuticals, Inc., 965 F.2d 31, 33-34 (5th Cir. 1992). "An employer's conduct rises to the level of extreme and outrageous conduct in only the most unusual cases." Id. "The defendant's conduct must have been "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." Hirras v. National R.R. Passenger Corp., 95 F.3d 396, 400 (5th Cir. 1996) (quoting Twyman v. Twyman, 855 S.W.2d 619, 621 (Tex. 1993) (quoting RESTATEMENT (SECOND) OF TORTS § 46 cmt. d. (1965))).
In considering the requirement that the conduct be "outrageous and extreme," this court notes that even where harassment is sufficiently severe or pervasive so as to establish a hostile work environment claim, the Fifth Circuit has found the same conduct insufficient to state a claim for intentional infliction of emotional distress. See Walker, 214 F.3d at 628 (noting that even illegal conduct does not necessarily constitute extreme and outrageous conduct under Texas law and holding frequent racist remarks insufficient as a matter of law); see also Thomas v. Clayton Williams Energy, Inc., 2 S.W.3d 734, 740-41 (Tex.App. — Hous. [14th Dist.] 1999, no pet.) (finding supervisor's frequent use of racial epithets against employee not extreme and outrageous conduct). The conduct Mills complains of does not rise to the level of extreme and outrageous conduct. See id.; see also McConathy, 131 F.3d at 564 (plaintiffs allegation that supervisor got angry when she told him she needed surgery, told her she "better get well this time" and that he would "no longer tolerate her health problems," and commented that it was inappropriate for plaintiff to make extensive use of health benefits because of her managerial position, was not extreme and outrageous conduct under Texas law).
Mills has failed to present facts showing conduct that is extreme or outrageous. Her claim for intentional infliction of emotional distress fails, as a matter of law. This court GRANTS BMC's motion for summary judgment as to the claim against it for intentional infliction of emotional distress.
VIII. BMC's Motion for an Award of Attorney Fees and Costs
BMC has moved for an award of attorney fees and costs under 42 U.S.C. § 1988 and 28 U.S.C. § 1927. (Docket Entry No. 31). Mills asserts that such an award is not justified. (Docket Entry No. 37). BMC also argues that it is entitled to an award of costs under FED. R. CIV. P. 54(d).
BMC has not moved for attorney fees under Title VII, 42 U.S.C. § 2000e-5 (k). However, the Supreme Court has held that the same standard governs fee awards to prevailing defendants under Title VII and section 1988. See Hughes v. Rowe, 449 U.S. 5, 14 (1980). Accordingly, the same result would follow.
A. BMC's Motion for Attorney Fees under Section 1988
BMC has moved for attorney fees under 28 U.S.C. § 1988 as the "prevailing party" in this suit. Section 1988 provides that:
[i]n any action or proceeding to enforce a provision of sections 1981, 1981a, 1982, 1983, 1985, and 1986 of this title . . . the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs.42 U.S.C. § 1988.
A prevailing defendant bears a higher burden under section 1988 than does a prevailing plaintiff. See Myers v. City of West Monroe, 211 F.3d 289, 292 (5th Cir. 2000). "This limitation attempts to prevent any chilling effect on the enforcement of civil rights." Id. at 292 n. 1 (citing Vaughner v. Pulito, 804 F.2d 873, 878 (5th Cir. 1986)). To award a prevailing defendant fees and costs under section 1988, a court must determine that a plaintiffs claim "`was frivolous, unreasonable, or groundless, or that the plaintiff continued to litigate after it clearly became so.'" Hughes v. Rowe, 449 U.S. 5, 14 (1980) (quoting Christianburg Garment Co. v. EEOC, 434 U.S. 412, 422 (1978)); see also Walker v. City of Bogalusa, 168 F.3d 237, 240 (5th Cir. 1999); United States v. Mississippi, 921 F.2d 604, 609 (5th Cir 1991).
A suit is frivolous if it is "so lacking in arguable merit as to be groundless or without foundation. . . ." Walker, 168 F.3d at 240 (quoting Plemer v. Parsons-Gilbane, 713 F.2d 1127, 1140-41 (5th Cir. 1983). In determining whether a claim is frivolous, a court must examine "(1) whether the plaintiff established a prima facie case, (2) whether defendant offered to settle, and (3) whether the district court dismissed the case or held a full-blown trial." Mississipi, 921 F.2d at 609. "It is not necessary to find subjective bad faith by the plaintiff. Defendants must show only that plaintiff "knew or should have known the legal or evidentiary deficiencies of his claim.'" Allen v. Temple University, 1996 WL 547213, at *1 (E.D. Pa. 1996) (quoting Brown v. Borough of Chambersburg, 903 F.2d 274, 277 (3d Cir. 1990)); see also Christianburg, 434 U.S. at 421 (a prevailing defendant should be awarded attorney fees only "upon a finding that the plaintiffs action was frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith").
This court agrees that BMC is the prevailing party on all claims asserted by Mills in this lawsuit. BMC asserts that Mills's prosecution of the lawsuit was "frivolous, unreasonable, or without foundation." BMC asserts that Mills failed to establish a prima facie case and to introduce evidence of pretext as to her discrimination and retaliation claims. BMC asserts that Mills's claims were doomed from the start, under the clear weight of applicable legal authority. BMC asserts that "Mills and her counsel were given fair notice of the applicable legal standard and lack of evidence." BMC's counsel sent Mills's counsel a letter, dated July 10, 2001, stating in detail its reasons for believing that Mills could not prevail on her race discrimination or retaliation claims under the applicable law. In the letter, BMC's counsel stated that BMC would agree not to pursue an award of attorney fees and costs if Mills voluntarily dismissed her claims within ten days, but that BMC would pursue such an award if Mills did not dismiss her claims.
Mills had not asserted a claim under the ADA at the time the letter was sent.
BMC has cited cases involving discrimination and retaliation claims in which courts have awarded defendants attorney fees and costs under section 1988. (Docket Entry No. 31, p. 4). In each of those cases, the appellate court reviewed the district court's award for abuse of discretion or under the clearly erroneous standard. In most of the cases BMC cites, the courts not only found no evidence of discrimination or retaliation, but also found that the lack of evidence was starkly apparent to all parties. See, e.g., Wilson-Simmons v. Lake County Sheriffs Dep't., 207 F.3d 818, 821-22 (6th Cir. 2000) (affirming fee award under section 1988 and section 1927 where plaintiff asserted discrimination claim, alleging that coworker told her of single racist email but was unable to produce any evidence that email existed, when email was sent, who sent email, or to whom email was addressed, and asserted retaliation claim but failed to show adverse employment action because evidence showed that she was not disciplined but rather was required to explain her conduct and that her reassignment was routine); Walker v. City of Bogalusa, 168 F.3d 237 (5th Cir. 1999) (affirming fee award under section 1988 and section 1927 where plaintiffs failed to produce any evidence of discriminatory purpose or disparate impact to support section 1983 claim); Tang v. State of Rhode Island, Dep't. of Elderly Affairs, 163 F.3d 7 (1st Cir. 1998) (upholding finding of frivolity under section 1988 where plaintiff failed to show adverse employment action based on minor changes or inconveniences in working situation and failed to show element of causation for retaliation claim, but remanding because unclear that district court realized it had discretion to deny or reduce fee award even after finding action "frivolous"); Nesmith v. Martin Marietta Aerospace, 833 F.2d 1489 (11th Cir. 1987) (affirming fee award under section 1988 where plaintiff alleged racial discrimination and retaliation but presented no evidence supporting either claim); Jackson v. Color Tile, Inc., 803 F.2d 201 (5th Cir. 1986) (affirming fee award under section 1988 where black female alleged discrimination after being fired for excessive absenteeism and replaced by another black female, where plaintiff missed one-third of normal work hours during probationary six-week period but alleged that excused absences should not have counted against her despite employee handbook's clear statement to contrary and presented no evidence of disparate treatment); Lewis v. Brown Root, Inc., 711 F.2d 1287 (5th Cir. 1983) (affirming fee award under section 1988 and section 1927 where plaintiff alleged racial discrimination but presented no evidence of discrimination and action also was dismissed for want of prosecution after plaintiff and attorney failed to appear for scheduled deposition and for docket call, plaintiff was late to court on day of trial, and plaintiff and attorney failed to return from recess during trial).
In this case, by contrast, Mills alleged and presented some facts supporting a prima facie showing of race discrimination and retaliation. Although Mills did not present facts that precluded summary judgment, "[t]he fact that a plaintiff may ultimately lose [her] case is not in itself a sufficient justification for the assessment of fees." Hughes, 499 U.S. at 14. BMC has failed to show that Mills's claims for race discrimination and retaliation were frivolous, so as to justify a fee award under section 1988. This court DENIES BMC's request for an award of attorney fees under section 1988 as to those claims.
Mills also brought claims under the ADA. These claims were added late in the lawsuit, after BMC terminated Mills's employment. The case law clearly and unequivocally establishes that the inability to work for a particular supervisor or with a particular group of people is not a substantially limiting impairment supporting a claim under the ADA. The cases also establish that Mills's allegations do not support a finding of a history of a disability or being regarded as having a disability, as defined by the ADA. The ADA claims were frivolous, unreasonable, and without foundation, warranting an award of attorney fees to BMC. This court GRANTS BMC's motion for attorney fees as to those fees incurred for legal work in responding to Mills's ADA claims. BMC must file an affidavit setting out the amount of fees reasonably incurred in responding to the ADA claims Mills asserted, no later than May 10, 2002.
B. BMC's Motion for Attorney Fees and Costs under Section 1927
BMC also has moved for an award of attorney fees and costs under section 1927, which provides:
Any attorney or other person admitted to conduct cases in any court of the United States or any Territory thereof who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys' fees reasonably incurred because of such conduct.28 U.S.C. § 1927.
"Before a sanction under 28 U.S.C. § 1927 is appropriate, the offending attorney's multiplication of the proceedings must be both "unreasonable' and `vexatious.'" FDIC v. Conner, 20 F.3d 1376, 1384 (5th Cir. 1994). According to the Fifth Circuit, "the court must make a separate determination on both the issue of the reasonableness of the claims and the purpose for which suit was instituted." FDIC v. Calhoun, 34 F.3d 1291, 1300 (5th Cir. 1994).
Under the reasonableness prong, "[s]ection 1927 requires a sanctioning court to do more than disagree with a party's legal analysis." Calhoun, 34 F.3d at 1300. Under the purpose prong, a party must present evidence of recklessness, bad faith, or improper motive. See Hogue v. Royse City, 939 F.2d 1249, 1256 (5th Cir. 1991); see also FDIC v. Conner, 20 F.3d 1376 (5th Cir. 1 994) (vacating imposition of sanctions because district court did not make detailed findings of vexatiousness); Calhoun, 34 F.3d at 1300 (district court abused its discretion by imposing sanctions after finding claims vexatious simply because they were "unreasonable").
The Fifth Circuit characterizes awards under section 1927 as "penal in nature." Id. (citing, Browning v. Kramer, 931 F.2d 340, 344 (5th Cir. 1991)). The Fifth Circuit also recognizes, "[o]ther courts have written that § 1927 should be employed "only in instances evidencing a `serious and standard disregard for the orderly process of justice.'" Conner, 20 F.3d at 1384 (quoting Dreiling v. Peugeot Motors of America, Inc., 768 F.2d 1159, 1165 (10th Cir. 1985); Kiefel v. Las Vegas Hacienda, Inc., 404 F.2d 1163, 1167 (7th Cir. 1968), cert. denied, 395 U.S. 908, 89 S.Ct. 1750, 23 L.Ed.2d 221 (1969)). See also United States v. Ross, 535 F.2d 346, 349 (6th Cir. 1976) (section 1927 liability should "flow only from an intentional departure from proper conduct, or, at a minimum, from a reckless disregard of the duty owed by counsel to the court."). This strict construction is necessary "so that the legitimate zeal of an attorney in representing her client is not dampened." Browning, 931 F.2d at 344.
BMC again asserts that the law made clear that Mills could not establish a prima facie case or evidence of pretext as to her race discrimination and retaliation claims. BMC also alleges that Mills's attorney used this litigation as a "fishing expedition" for evidence to support a future disparate treatment or "class" complaint against BMC. BMC cites to specific questions Mills's attorney asked witnesses during depositions that BMC characterizes as irrelevant and outside the scope of discovery for this case. Mills asserts that these questions were relevant to her claims or to the witnesses' credibility. Although the answers to some of these questions may not have been admissible at trial, this court does not find that exploring these areas during the deposition, as to a small number of witnesses, is sufficient evidence of unreasonable or vexatious conduct. Mills's attorney did not pursue claims that were so patently groundless or meritless as to meet the showing necessary to justify a fee award under section 1927. BMC has not shown that Mills's attorney acted unreasonably and vexatiously as to the race discrimination and retaliation claims.
Mills's attorney asked one witness whether he had observed a "glass ceiling" at BMC or whether there was a "good ole boy system" for promotions. Mills's attorney asked another witness whether he had any concerns about retaliation from his deposition testimony; whether he had ever been passed over for a promotion; whether he believed that applicants were not hired because of their race; and whether he had observed patterns in the promotion of black employees at BMC. (Docket Entry No. 31 p. 10).
Mills also brought claims under the ADA. These claims were without support in the facts or the case law. Bringing these claims unreasonably and unnecessarily delayed, and increased the costs of, the proceedings. However, a finding of unreasonableness is not sufficient to award fees under section 1927. This court also must find that Mills's attorney acted with an improper purpose. The Fifth Circuit has stated that a district court should not infer such purpose from the unreasonable nature of the claims alone. See Calhoun, 34 F.3d at 1300. There is insufficient evidence to support a finding that Mills's attorney acted with an improper purpose in bringing the ADA claims.
This court DEMES BMC's motion for sanctions under section 1927.
C. An Award of Costs under FED. R. Civ. P.54(d)
In its motion for costs and attorney fees, BMC stated that if it prevailed in this litigation, it would be entitled to recover costs under FED. R. Civ. P. 54(d) and "would respectfully request the award of such costs." (Docket Entry No. 31, p. 12). This court agrees that BMC is entitled to recover its costs, exclusive of attorney fees, under Rule 54(d).
Rule 54(d)(1) provides:
Except when express provision therefor is made either in a statute of the United States or in these rules, costs other than attorneys' fees shall be allowed as of course to the prevailing party unless the court otherwise directs; but costs against the United States, its officers, and agencies shall be imposed only to the extent permitted by law.
This court finds that BMC is the prevailing party and is entitled to an award of costs under Rule 54(d).
IX. Conclusion
Based on the pleadings, the motions and responses, the summary judgment record, and the applicable law, this court GRANTS BMC's motion for summary judgment as to all the claims; DENIES BMC's challenges to the summary judgment evidence as moot; GRANTS, in part, and DENIES, in part, BMC's motion for attorney fees under section 1988; DENIES BMC's motion for attorney fees and costs under section 1927; and GRANTS BMC's motion for costs under FED. R. CIV. P. 54(d). BMC must file an affidavit with supporting documents setting out its reasonable attorney fees incurred in responding to Mills's ADA claim, no later than May 10, 2002.