Opinion
Civil Action No. 3:99-CV-1411-L.
July 19, 2000.
MEMORANDUM OPINION AND ORDER
Before the court are Defendant Texas Department of Protective and Regulatory Services' Motion to Dismiss, filed April 14, 2000, and Defendant Texas Department of Protective and Regulatory Services' Motion for Summary Judgment, filed May 22, 2000. The court has carefully considered the motions, response, replies, record evidence, and the applicable law. For the reasons that follow, Defendant's Motion to Dismiss and Defendant's Motion for Summary Judgment are both granted.
I. Factual and Procedural Background
Plaintiff Victoria Nwoko ("Nwoko") is a black female of Nigerian national origin. Defendant Texas Department of Protective and Regulatory Services is an agency of the State of Texas that oversees three major programs: Child Protective Services, Adult Protective Services, and Child Care Licensing. Nwoko was hired by Defendant on September 1, 1997 as a caseworker in its Child Protective Services ("CPS") program. After her initial training, Nwoko was assigned to CPS Unit 27 in Dallas County. Unit 27 specialized in cases where children had been removed from their parents' custody due to allegations of abuse or neglect. After being removed from their parents' care, these children were placed with foster families or with biological relatives while CPS and the court system evaluated their parents' fitness to maintain parental rights.
Nwoko has not responded to Defendant's Motion for Summary Judgment. Although Nwoko has not responded, the court is not permitted to enter summary judgment for Defendant by default. Eversley v. Mbank Dallas, 843 F.2d 172, 174 (5th Cir. 1988); Tutton v. Garland Indep. Sch. Dist., 733 F. Supp. 1113, 1117 (N.D. Tex. 1990). Rather, the court may accept as true the facts presented in support of Defendant's motion. Eversley, 843 F.2d at 174. Therefore, the facts presented by Defendant in its motion are hereby accepted as true, to the extent that they are supported by the summary judgment evidence.
Nwoko's job as a caseworker required her to make regular visits to track the progress of families, develop family service plans and court reports, and testify in court hearings. On or about October 20, 1998, Nwoko was assigned a case involving a minor child by the initials "C.W." The child's case was pending in the 305th Family District Court of Dallas County. The Presiding Judge in this court was Cheryl Lee Shannon ("Judge Shannon"). The Assistant District Attorney assigned to C.W.'s case was Denise Hale ("Hale"), and the Chief Prosecutor for the 305th District Court was Michael Munden ("Munden"). The 305th District Court required that court reports and family service plans be filed with the District Clerk at least 48 hours before a review hearing. Although this was the rule, Judge Shannon informally permitted caseworkers to bring these documents to court on the day of the hearing, provided that they were provided to the District Attorney's office in advance of the hearing.
Judge Shannon scheduled a hearing on C.W.'s case for the morning of November 20, 1998. Nwoko did not file a service plan or a court report 48 hours prior to the hearing, and also failed to bring these documents with her to court. During the hearing, Judge Shannon ordered Nwoko to file the service plan and court report by the close of business that day. Hale contacted Nwoko later in the day to confirm that she had filed these documents. Nwoko informed Hale that she had filed the service plan but that she did not intend to file the court report, despite Judge Shannon's order that she do so. Hale told Nwoko that the report had to be filed, but Nwoko refused to do so, arguing that filing the report was not necessary, and that even if she prepared the report, there was no supervisor in the office who could sign it.
After her conversation with Nwoko, Hale told her supervisor Munden that Nwoko had not filed the court report. Munden then contacted Susan McKay ("McKay"), who was the senior manager on duty in the CPS Dallas office. McKay assured Munden that the report would be prepared and filed, and that she would be available to sign the report. Despite the efforts of Hale, Munden, and McKay, Nwoko did not file the court report by the close of business on November 20, 1998, as ordered by Judge Shannon.
On the morning of Monday, November 23, 1998, Judge Shannon contacted Munden and told him to have Nwoko appear in court that morning. When Munden called Nwoko to tell her that she needed to appear, Nwoko protested and began to make excuses for her failure to file the court report. When Nwoko appeared before Judge Shannon, the judge admonished her for her failure to file the report and reiterated that when she ordered that a report be filed, she expected Nwoko to file it, and that the matter was not open to debate.
Both Munden and Hale were disturbed by Nwoko's conduct on November 20th and 23rd, and were concerned that her conduct would impact the good working relationship between the court, the District Attorney's office, and CPS. After the incident involving Nwoko, Judge Shannon changed her usual procedures and no longer permitted CPS caseworkers to file their court reports after the pre-hearing deadline. Therefore, Munden instructed Hale to contact Nwoko's supervisor Crystal Cato ("Cato") to tell her what had happened. Hale sent Cato a memorandum describing the November 1998 incident involving Nwoko.
On November 24, 1998 Cato held a conference with Nwoko to discuss the incident in Judge Shannon's court. Nwoko denied that she was argumentative with Judge Shannon and stated that she did not understand that she needed to file the report. Cato explained to Nwoko that she had not properly completed her job duties when she failed to file the report, and that she would be recommending that Nwoko be disciplined for the incident. Based on Hale's memorandum and other concerns Cato had about Nwoko's professionalism and demeanor, Cato eventually recommended that Nwoko be discharged due to her failure to perform her job duties, failure to show professional courtesy and respect to those she came into contact with, including Hale, Munden, and Judge Shannon, and failure to conduct herself so as to maintain credibility as a potential witness with members of law enforcement, in violation of Defendant's Standards of Conduct £ 4, 10, and 12. Cato's recommendation was accepted by Wayne Hairgrove ("Hairgrove"), Defendant's regional director. On March 8, 1999, Hairgrove sent Nwoko a letter informing her that her employment with Defendant would end effective March 9, 1999.
Nwoko filed an administrative grievance contesting her dismissal, and a grievance hearing was held before a Hearings Examiner. The Hearings Examiner upheld Defendant's decision to terminate Nwoko on September 9, 1999. Meanwhile, Nwoko had filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") on March 19, 1999, complaining that Defendant had discriminated against her based upon her Nigerian national origin. Nwoko received her right to sue letter from the EEOC on March 23, 1999. On June 22, 1999, Nwoko filed suit against Defendant, bringing Title VII claims for discrimination based on sex, race, and national origin. Nwoko also brings state law claims for intentional infliction of emotional distress and invasion of privacy. In addition to Nwoko's claims, her husband Clement Okonkwo ("Okonkwo") brings a state law claim for loss of consortium. Defendant moves to dismiss Plaintiffs' state law claims, and additionally moves for summary judgment on Nwoko's federal claims.
II. Defendant's Motion to Dismiss
Defendant is an agency of the State of Texas. In its first motion, Defendant urges the court to dismiss Plaintiffs' state tort claims because it is immune from suit and from liability under the doctrine of sovereign immunity. Defendant is correct that under Texas law the state is immune from tort liability unless such liability has been expressly waived by the legislature in the Texas Tort Claims Act. Tex. Civ. Prac. Rem. Code § 101.001 et seq.; Campbell v. City of San Antonio, 43 F.3d 973, 977-78 (5th Cir. 1995); Diaz v. Central Plains Regional Hosp., 802 F.2d 141, 142-43 (5th Cir. 1986); Lowe v. Texas Tech University, 540 S.W.2d 297, 298 (Tex. 1976). Similarly, governmental agencies such as Defendant are also entitled to the same immunity protection as the state. Diaz, 802 F.2d at 143. In fact, the Texas Tort Claims Act proscribes liability arising out of an intentional tort. Tex. Civ. Prac. Rem. Code § 101.057(2); Campbell, 43 F.3d at 978.
In their response to Defendant's Motion to Dismiss, Plaintiffs have failed to address Defendant's immunity argument, which the court finds dispositive. Under Texas law, to establish a claim for intentional infliction of emotional distress, a plaintiff must show that (1) defendant acted intentionally or recklessly; (2) the conduct was extreme and outrageous; (3) that defendant's conduct caused her emotional distress; and (4) the emotional distress was severe. Mattix-Hill v. Reck, 923 S.W.2d 596, 597 (Tex. 1996). To establish an invasion of privacy claim, a plaintiff must show an intentional intrusion upon the solitude or seclusion of her private affairs or concerns, which would be highly offensive to a reasonable person. Valenzuela v. Aquino, 853 S.W.2d 512, 513 (Tex. 1993). Since Nwoko's claims for intentional infliction of emotional distress and invasion of privacy are intentional torts for which Defendant is immune from liability under Texas law. Therefore, these claims must be dismissed. Additionally, Okonkwo's loss of consortium claim is a state law claim that is derivative of Nwoko's intentional tort claims. Motor Express, Inc. v. Rodriguez, 925 S.W.2d 638, 640 (Tex. 1996); Simpson v. State, 998 S.W.2d 304, 307 (Tex.App. — Austin 1999, no pet. h.). Because Nwoko's tort claims are barred by state law, Okonkwo's loss of consortium claim fails as well. All of Plaintiffs' state law claims are dismissed.
III. Defendant's Motion for Summary Judgment
With respect to Nwoko's remaining Title VII claims, Defendant has moved for summary judgment, contending that there is no genuine issue of material fact regarding these claims, and that it is therefore entitled to judgment as a matter of law. Nwoko has not filed a response to Defendant's summary judgment motion. Each claim will be addressed separately below.
A. Summary Judgment Standard
Summary judgment shall be rendered when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed, R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323-25 (1986); Ragas v. Tennessee Gas Pipeline Company, 136 F.3d 455, 458 (5th Cir. 1998). A dispute regarding a material fact is "genuine" if the evidence is such that a reasonable jury could return a verdict in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When ruling on a motion for summary judgment, the court is required to view all inferences drawn from the factual record in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986); Ragas, 136 F.3d at 458.
Once the moving party has made an initial showing that there is no evidence to support the nonmoving party's case, the party opposing the motion must come forward with competent summary judgment evidence of the existence of a genuine fact issue. Matsushita, 475 U.S. at 586. Mere conclusory allegations are not competent summary judgment evidence, and thus are insufficient to defeat a motion for summary judgment. Eason v. Thaler, 73 F.3d 1322, 1325 (5th Cir. 1996). Unsubstantiated assertions, improbable inferences, and unsupported speculation are not competent summary judgment evidence. See Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir.), cert. denied, 513 U.S. 871 (1994). The party opposing summary judgment is required to identify specific evidence in the record and to articulate the precise manner in which that evidence supports his claim. Ragas, 136 F.3d at 458. Rule 56 does not impose a duty on the court to "sift through the record in search of evidence" to support the nonmovant's opposition to the motion for summary judgment. Id., see also Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915-16 n. 7 (5th Cir.) cert. denied, 506 U.S. 832 (1992). "Only disputes over facts that might affect the outcome of the suit under the governing laws will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248. Disputed fact issues which are "irrelevant and unnecessary" will not be considered by a court in ruling on a summary judgment motion. Id. If the nonmoving party fails to make a showing sufficient to establish the existence of an element essential to its case and on which it will bear the burden of proof at trial, summary judgment must be granted. Celotex, 477 U.S. at 322-23.
B. Sex Discrimination
In her Complaint, Nwoko alleges that Defendant discriminated against her because she is female. Defendant contends that the court is compelled to dismiss this claim because Nwoko has failed to exhaust her administrative remedies. In support of its argument, Defendant points to Nwoko's EEOC charge. On the EEOC charge form, Nwoko checked only the box marked "national origin," and did not check the box marked "sex." As her discrimination statement, Nwoko stated: "I believe I have been discriminated against because of my National Origin, Nigerian (accent) in violation of Title VII of the Civil Rights Act of 1964, as amended."
Plaintiff's Onginal Complaint at ¶ 7.
Appendix to Brief in Support of Defendant Texas Department of Protective and Regulatory Services' Motion for Summary Judgment ("Defendant's App.") at p. 106.
A condition precedent to bringing suit on any Title VII claim is the timely filing of an EEOC charge. Young v. City of Houston, 906 F.2d 177, 179 (5th Cir. 1990). The scope of a Title VII suit filed thereafter extends no further than the scope of the investigation that can reasonably be expected to grow out of the charge of discrimination. Id.; Fine v. GAF Chemical Corp., 995 F.2d 576, 577-78 (5th Cir. 1993); Chester v. American Telephone and Telegraph Co., 907 F. Supp. 982, 987 (N.D. Tex. 1994), aff'd 68 F.3d 470 (5th Cir. 1995), cert. denied, 516 U.S. 1141 (1996). It is undisputed that Nwoko did not check "sex" on her charge of discrimination filed March 19, 1999, and also made no allegations of sex discrimination when describing the particulars of Defendant's alleged discrimination. It cannot be reasonably expected that issues of sex discrimination would be within the scope of the EEOC's investigation of Nwoko's charge; therefore, her sex discrimination allegations are not properly within the scope of this Title VII suit. See Fine, 995 F.2d at 578; Young, 906 F.2d at 179-80. Nwoko has failed to exhaust her administrative remedies as to her sex discrimination claim by filing a timely charge with the EEOC; therefore, the court must dismiss this claim without prejudice.
B. Race and National Origin Discrimination
As with Nwoko's sex discrimination claim, Defendant contends that this claim must be dismissed because Nwoko has failed to exhaust her administrative remedies. It is undisputed that when she filed her EEOC charge, Nwoko checked only the box marked "national origin" and did not check the box marked "race." Furthermore, Nwoko's discrimination statement only mentions national origin and does not allege race discrimination. Defendant therefore argues that Nwoko's race discrimination allegations are not "like or related to allegations contained in the [EEOC] charge and growing out of such allegations during the pendency of the case before the [EEOC]." National Ass'n of Gov't Employees v. City Pub. Serv. Bd. of San Antonio, Texas, 40 F.3d 698, 711 (5th Cir. 1994), quoting Sanchez v. Standard Brands, Inc., 431 F.2d 455, 466 (5th Cir. 1970).
Id.
Id.
Under this standard, the court must decide whether Nwoko's race discrimination claim is sufficiently related to her national origin discrimination claim because it reasonably would have fallen within the scope of the EEOC's investigation of her national origin claim. In some contexts, national origin and racial discrimination are "so closely related . . . as to be indistinguishable." Bullard v. OMI Georgia, Inc., 640 F.2d 632, 634 (5th Cir. Unit B 1981). Race and national origin claims may sometimes be correlated with each other because of certain "historical or demographic facts." Dennis v. Pan American World Airways, Inc., 746 F. Supp. 288, 291 (E.D.N.Y. 1990). Furthermore, when the group to which the plaintiff belongs "is of such an identifiable nature that the treatment afforded its members may be measured against that afforded [to] Anglos," a national origin claim may also state a claim for race discrimination. See Manzanares v. Safeway Stores, Inc., 593 F.2d 968, 970 (10th Cir. 1979). As a person of Nigerian heritage, Nwoko is likely to be racially grouped or identified with blacks, and therefore her national origin claim can be correlated with her race claim. For this reason, issues of racial discrimination could be reasonably expected to grow from her charge of discrimination. Nwoko has not failed to exhaust her administrative remedies on her race discrimination claim, and the court will not dismiss it for this reason. It is undisputed that Nwoko has exhausted her administrative remedies with respect to her national origin claim. Therefore, the court will hereafter consider Nwoko's race and national origin claims together.
Defendant's second argument in support of summary judgment on Nwoko's race and national origin discrimination claims is that Nwoko has allegedly failed to establish a prima facie case of discrimination. Nwoko has presented no direct evidence of discrimination; therefore, the court will examine her race discrimination claims under the well-established burden-shifting analysis articulated in McDonnell Douglas v. Green, 411 U.S. 792, 802-04 (1973). The McDonnell Douglas analysis first requires Nwoko to establish a prima facie case of discrimination. 411 U.S. at 802. If she successfully does so, the burden then shifts to Defendant to explain the circumstantial evidence of discrimination by articulating a legitimate, nondiscriminatory reason for its actions. Id.; Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253-56 (1981). If Defendant carries this burden, Nwoko then must demonstrate that Defendant's articulated rationale is pretextual, meaning that Defendant's proffered reason for its decision to discharge her is untrue. Reeves v. Sanderson Plumbing Products, Inc., 120 S.Ct. 2097, 2108 (2000).
To establish her prima facie case, Nwoko must show that (1) she belongs to a protected class of persons; (2) she suffered an adverse employment action; and (3) employees outside her protected class were treated differently under nearly identical circumstances. Mayberry v. Vought Aircraft Co., 55 F.3d 1086, 1090 (5th Cir. 1995). Nwoko has satisfied the first element of her prima facie case on both her race and national origin claims because she is black and Nigerian, and therefore she is a member of a class protected by Title VII. Under the second prong of her prima facie case, Nwoko must show that Defendant took adverse employment action against her. Defendant does not argue that Nwoko has not satisfied this prong of her prima facie case; therefore, for purposes of this motion, the court will assume that Defendant took ultimate employment action against Nwoko when it terminated her employment.
Defendant takes the position that Nwoko has failed to establish the third element of her prima facie case because she is unable to show that non-black and non-Nigerian employees were treated differently than she under nearly identical circumstances. At her deposition, Plaintiff testified that five other employees had failed to file court reports or perform their other duties, and that therefore Defendant discriminated against her when it terminated her based on the November 1998 incident. Although the record does not clearly reflect the race and national origin of these coworkers, the court views the evidence in the light most favorable to Nwoko and assumes that these colleagues are not black or Nigerian.
Id. at pp. 79-80.
Despite Nwoko's testimony, Defendant maintains that these employees were not similarly situated in that they did not disregard a district judge's direct order, thus damaging the relationship between CPS, the district attorney's office, and the court. Cato testified that no other caseworker under her supervision had ever conducted herself the way that Nwoko did. Employees whose conduct was not the same as that of the plaintiff are not considered similarly situated for purposes of disparate treatment possibly violating Title VII. Shackelford v. Deloitte Touche LLP, 190 F.3d 398, 405-06 (5th Cir. 1999); Nieto v. L H Packing Co., 108 F.3d 621, 623 (5th Cir. 1997). Nwoko's vague statement that other caseworkers had performance deficiencies does not adequately raise a fact issue on this element of her prima facie case. Nwoko has identified no coworkers who defied a judge's order and then argued with the judge regarding her failure to comply with the order. Such an employee would be an appropriate comparator for someone in Nwoko's situation. Nwoko has failed to raise a fact issue whether a similarly-situated non-black or non-Nigerian employee would have been treated differently than she following the November 1998 incident. Therefore, Nwoko has failed to establish a prima facie case regarding her race and national origin discrimination claims. Defendant is entitled to judgment as a matter of law on these claims.
The court further finds that even if Nwoko had successfully established her prima facie case of discrimination, Defendant would still be entitled to summary judgment. Specifically, the court finds that Defendant has articulated a legitimate, nondiscriminatory reason for its decision to discharge Nwoko, and Nwoko has failed to set forth any evidence raising a fact issue whether Defendant's proffered reason for its decision is untrue. See Reeves, 120 S.Ct. at 2108 (plaintiff may avoid judgment as a matter of law by showing that the employer's legitimate, nondiscriminatory reason for its decision is untrue, permitting factfinder to infer discrimination from falsity of employer's excuse).
Here, Defendant has produced evidence showing that it decided to terminate Nwoko because she violated specific work rules that CPS caseworkers were expected to follow. Defendant's Standard of Conduct £ 4 required employees to perform their work duties and meet standards of job performance. Standard of Conduct £ 12 required employees to maintain their credibility with law enforcement officers with whom they work, with the community and in the event they are required to testify in court as witnesses. Finally, Standard of Conduct £ 10 required employees to exhibit courtesy and respect in their interactions with others in the course of their jobs. By failing to file the court report, which was contrary to Judge Shannon's order, arguing with Hale and Munden regarding the issue, and Nwoko violated these standards of conduct. Defendant has presented sufficient evidence to show that it discharged Nwoko for this reason. Nwoko has presented no evidence raising a fact issue regarding the truth of Defendant's proffered reason for its action. Therefore, for this additional reason, Nwoko's race and national origin discrimination claims must be dismissed.
IV. Conclusion
For the reasons stated herein, Defendant's Motion to Dismiss is granted, and Plaintiffs' state law claims for intentional infliction of emotional distress, invasion of privacy, and loss of consortium are dismissed with prejudice. Defendant's Motion for Summary Judgment is also granted. Nwoko's Title VII sex discrimination claim is dismissed without prejudice due to her failure to exhaust her administrative remedies with respect to this claim. Nwoko's remaining Title VII claims for race and national origin discrimination are dismissed with prejudice. Judgment will be entered by separate document.
It is so ordered this 19th day of July, 2000.