Opinion
Civil No. 3:00-CV-2660-H.
October 10, 2001.
MEMORANDUM OPINION AND ORDER
Before the Court are Defendants' Motion for Summary Judgment, filed August 6, 2001, Plaintiff's Response, filed August 24, 2001, and Defendants' Reply filed September 18, 2001.
I. BACKGROUND
Plaintiff ME Okere began working for the Dallas County Community College District ("the District") in August 1997. He worked as a procurement counselor with the Dallas Small Business Development Center at the Bill J. Priest Institute ("the Institute"). Okere held this position when an opportunity for advancement was created by the departure of Earnest Castillo, then Okere's supervisor. The District created a search committee that included at least one African-American to screen qualified applicants. Following an application and interview process, the search committee forwarded three finalists to the hiring supervisors. The finalists were two white males and one African-American male. Okere was not one of the recommended finalists. The position was awarded to Jeffrey Blatt, a white male. The record indicates that Mr. Blatt had extensive experience in the relevant fields. Mr. Blatt's promotion created an opening for the position of training coordinator. The District utilized the same process outlined above to fill the position. Again, Okere was not selected as a finalist. Of the three finalists, one was an African-American female. Okere remained in the position of procurement counselor.
In August 1999, Okere, accompanied by Alejandro Aguirre, went to pick up some furniture donated to the Dallas Small Business Development Corporation ("SBDC") by Nationsbank. Upon their return to the Institute, Okere asked Mr. Aguirre to transport two of the chairs to his office. Mr. Aguirre complied. Later that same Friday, Mr. Arredondo, one of Okere's co-workers, witnessed Okere leave with the two chairs in his car. On the following Monday, Mr. Arredondo reported what he witnessed to Mr. Aguirre. Mr. Aguirre went to Okere's office and demanded that he produce the chairs, but Okere did not comply. Following his conversation with Okere, Mr. Aguirre informed his superiors of the situation. Dr. Glenn Bounds, president of the Institute, asked Mr. Huan Luong, vice-president of business development services, to conduct an investigation. In the course of his investigation, Mr. Luong was provided a copy of a videotape apparently showing Okere carrying the donated chairs from the Institute toward the parking lot. Mr. Aguirre confirmed that it was Okere on the videotape. Mr. Blatt and Mr. Luong were among those that met with Okere to discuss the situation on August 17, 1999. The record indicates that Okere initially stated that all of the chairs were in the storage area, but later indicated he had thrown two of the chairs away. After further questioning, Okere indicated he had taken two of the chairs home. He indicated that since he had signed for the chairs, he could do whatever he wanted with them.
After the meeting with Okere, Mr. Luong advised Dr. Bounds of the results of the investigation. Dr. Bounds instructed Mr. Blatt, Okere's supervisor, to place Okere on suspension with pay. In addition to the report from Mr. Luong, Dr. Bounds received reports and memorandum from others in the Institute involved in the investigation. Dr. Bounds then met with Okere to discuss the situation. Okere went through several versions of his story during the meeting. Again, Okere admitted taking the furniture; Dr. Bounds informed him he had violated District policy. Following this meeting, Dr. Bounds sought input from other supervisors within the Institute. All recommended Okere be discharged. Dr. Bounds advised Okere of his termination by letter dated August 24, 2001.
Okere filed a complaint with the Texas Commission on Human Rights ("TCHR") and the Equal Employment Opportunity Commission ("EEOC") alleging discrimination based on race and national origin on August 18, 1999. He alleged he was paid less than his counterparts who were neither African-American nor of Nigerian descent. He also alleged discrimination in not being named director of the Institute and in being placed on suspension. Okere filed another charge alleging discriminatory termination on September 30, 1999. Okere later amended his first claim to include a charge of discriminatory termination and to add a charge of discrimination in not being named Program Coordinator. This last charge apparently refers to the training coordinator position vacated by Mr. Blatt upon his promotion to director. Both the EEOC and the TCHR issued right to sue letters. Okere filed suit in this Court on December 6, 2000 alleging violations of Title VII of the Civil Rights Act of 1964 ("Title VII") and the Texas Labor Code. Okere also seeks punitive damages.
Okere is a naturalized citizen originally from Nigeria.
Okere's response to Defendants' interrogatories indicates there is a parallel suit underway in 191st District Court in Dallas County, as well as a suit in Justice Court. See Defendants' Appendix, at 42.
II. SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate where the facts and law as represented in the pleadings, affidavits and other summary judgment evidence show that no reasonable trier of fact could find for the nonmoving party as to any material fact. See FED. R. CIV. P. 56; Lujan v. National Wildlife Federation, 497 U.S. 871, 888 (1990); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 323-25 (1986); Innovative Database Sys. v. Morales, 990 F.2d 214 (5th Cir. 1993). "The moving party bears the initial burden of identifying those portions of the pleadings and discovery in the record that it believes demonstrate the absence of a genuine issue of material fact, but is not required to negate elements of the nonmoving party's case." Lynch Properties, Inc. v. Potomac Ins. Co. of Ill., 140 F.3d 622, 625 (5th Cir. 1998) (citing Celotex, 477 U.S. at 322-25).
If the movant meets its burden, the nonmovant must go beyond the pleadings and designate specific facts showing that a genuine issue of material fact exists for trial. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Edwards v. Your Credit, Inc., 148 F.3d 427,431 (5th Cir. 1998). A party opposing summary judgment may not rest on mere conclusory allegations or denials in its pleadings unsupported by specific facts presented in affidavits opposing the motion for summary judgment. See FED. R. CIV. P. 56(e); Lujan, 497 U.S. at 888; Hightower v. Texas Hosp. Assn., 65 F.3d 443, 447 (5th Cir. 1995). In determining whether genuine issues of fact exist, "[f]actual controversies are construed in the light most favorable to the nonmovant, but only if both parties have introduced evidence showing that a controversy exists." Lynch, 140 F.3d at 625; see also Eastman Kodak v. Image Technical Services, 504 U.S. 451 (1992). However, in the absence of any proof, the Court will not assume that the nonmoving party could or would prove the necessary facts. See Lynch, 140 F.3d at 625. "If the record, taken as a whole, could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial." Friou v. Phillips Petroleum Co., 948 F.2d 972, 974 (5th Cir. 1991).
With these summary judgment standards in mind, the Court turns to Defendants' summary judgment motion.
III. TITLE VII DISCRIMINATION CLAIMS
Under Title VII analysis, (1) the plaintiff must establish a prima facie case of discrimination; (2) the defendant may then offer a valid, non-discriminatory reason for the alleged discriminatory action; and, (3) the plaintiff must then show that the defendant's proffered reason is merely a pretext. See McDonnell Douglas v. Green, 411 U.S. 792, 802-03 (1973). The Title VII plaintiff at all times bears the "ultimate burden of persuasion." See St. Mary's Honor Center v. Hicks, 509 U.S. 502, 511 (1993).
A. Disparate Pay
Okere claims that he was paid less than his co-workers who were neither African-American nor of African descent. To establish a prima facie case on his disparate pay claim, Okere must show he was paid less than a member of a different race was paid for doing substantially the same job with substantially the same responsibility. See Pittman v. Hattiesburg Mun. Separate Sch. Dist., 644 F.2d 1071, 1074 (5th Cir. 1981). It follows that if the evidence shows Okere did not perform substantially the same job as those to whom he compares himself, the prima facie case fails. See id.
Okere's deposition testimony and interrogatory response indicate that he compares himself to Wes Weller, James Berish, Susan Vigil, Jeff Blatt, Jerry Chandler, Huan Luong, Al Salgado, Gordon Edwards, and Neil Small. See Defendants' Appendix, at 43-44, 59C, 78-78A. Okere focuses his complaint on those holding coordinator and director positions because he argues he performed at least some of the job functions associated with those positions. See id. at 59A-59B. Okere relies heavily on a Job Description Questionnaire he filed with the District in August 1998 which detailed why his job description did not match the job he was performing. His then supervisor, Earnest Castillo, concurred in Okere's assessment. See Plaintiff's Appendix, at Exhibit A3-A6. He also points to a grievance he filed with Dr. Bounds in June 1999 in which he claimed he was underpaid. The grievance claimed other employees performing tasks equivalent to Okere's received higher compensation. See id. at Exhibit A.
Okere has failed to number the pages of his appendix; the Court will endeavor to identify relevant evidence in the appendix by utilizing Okere's exhibit numbers.
The Court begins by pointing out that apart from Okere's conclusory statements, there is no evidence that the employees to whom Okere compares himself performed substantially the same duties as him. Okere's unsubstantiated assertions are not competent summary judgment evidence. See Celotex, 477 U.S. at 324; Garza v. Prestige Ford Garland Ltd. P'ship, No. 0110382, slip op. at 7 (5th Cir. Sept. 26, 2001). The District has also presented evidence that the five people to whom Okere principally compares himself did, in fact, perform substantially different jobs than did Okere. See Defendants' Appendix, at 2-3. Okere's prima facie case fails. However, even if the Court were to assume, arguendo, that Okere has made a prima facie showing of disparate pay discrimination, the Court finds that the District has presented legitimate, nondiscriminatory factors unrelated to race or national origin that account for Okere's salary. The affidavit of Ms. Debbie Speck indicates Okere's salary was tied directly to his job code and the position he held. See id. at 4. Thus, the burden shifts back to Mr. Okere to show that the District's proffered reason is a pretext. Okere has failed to meet this burden. At best, Okere's grievance and job description questionnaire demonstrate that he was dissatisfied with the pay he received for the job he performed. These two documents do not, however, demonstrate that Okere received less compensation due to his race or national origin. They certainly do not demonstrate that the District's explanation for Okere's pay is merely a pretext to hide actual discrimination. Accordingly, Defendants' motion for summary judgment on the Title VII claim of disparate pay is GRANTED.
B. Denial of Promotions
Okere alleges that he was denied promotions to director and training coordinator due to his race and/or his national origin. To his establish his prima facie claim, Okere must show (1) he was in a protected class; (2) he was qualified for the position sought; (3) he was not promoted; and, (4) the position was filled by someone outside the protected class. See Blow v. City of San Antonio, Texas, 236 F.3d 293, 296 (5th Cir. 2001) (citing Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53 (1981)). The Court finds that though weak, Okere has made out a prima facie case of discrimination. Okere was within a protected class; that he was interviewed for both positions may indicate competency; he was not promoted; and, both positions were filled by white men. Again, however, the Court finds that the District has provided a valid, non-discriminatory reason for Okere's lack of promotion. As has been discussed, the District utilized search committees to fill both positions. Okere was not a finalist for either position, yet one of the three finalists for each position was an African-American. The committees utilized objective factors such as experience and expertise to rank candidates. In each case, committee members found other applicants were more qualified than Okere. See Defendants' Appendix, at 4-5, 7-10. Having found the Defendants present a valid, nondiscriminatory basis for their actions, the burden shifts back to Okere to demonstrate pretext. See Rios v. Rossotti, 252 F.3rd 375, 378 (5th Cir. 2001). Okere offers no evidence to challenge the Districts' evidence that the search committees used objective, race-neutral factors in selecting finalists for each position. Okere's claim that District search committees were always told who to hire beforehand, without any evidence whatsoever to support it, does not satisfy his burden. Okere has presented no evidence of discrimination by the search committee. Accordingly, Defendants' motion for summary judgment on the Title VII denial of promotions claim is GRANTED.
C. Suspension and Discharge
In order to establish a prima facie case on the discriminatory suspension and discharge claims, Okere must demonstrate (1) he is a member of a protected class; (2) was qualified for the position of procurement counselor; (3) was subject to an adverse employment action; and (4) he was replaced by someone outside the protected class, or show that other similarly situated employees were treated more favorably. See Okoye v. University of Tex. Houston Health Sci. Ctr., 245 F.3d 507, 512-13 (5th Cir. 2001). The Court agrees with Defendants that the fourth requirement is dispositive in the present case. The record indicates Okere was not replaced following his suspension and termination. See Defendants' Appendix, at 13. This fact is uncontroverted and the Court accepts it as true. Thus, to establish his prima facie claim, Okere must show other similarly situated employees were treated more favorably. As has been detailed, Okere was suspended and eventually discharged because District employees reported that he had taken two donated chairs home. Okere alleges that Jeff Blatt was once caught stealing $75.00, and, instead of being fired, was only asked to repay the money. See Plaintiff's Response, at 12. Okere offers no evidence of this incident apart from a one sentence allegation. He offers no other evidence of the District not terminating an employee accused of theft. The Court finds that Okere has failed to make out a prima facie case of discrimination for either his suspension or his termination.
While the prima facie case fails, even if the Court assumes, arguendo, that Okere made out a prima facie case, the Court finds that the District has offered a valid, nondiscriminatory reason for Okere's discharge, namely his alleged theft. Given the statements from employees about the theft, the videotape of Okere leaving the building with the chairs, the witness who saw Okere drive away with the chairs, and Okere's contradictory statements when questioned about the chairs whereabouts, the Defendants argue that District supervisors reasonably believed Okere had stolen the chairs when he was placed on suspension and eventually terminated. As the District has offered a valid, nondiscriminatory reason, the burden shifts back to Okere to demonstrate that the allegation of theft was merely a pretext for his termination based on discriminatory intentions. The Court finds that Okere has failed to meet this burden. There is no evidence of a discriminatory purpose by Dr. Bounds when he directed Mr. Blatt to place Okere on suspension or when he ultimately terminated Okere. There is no evidence that the theft accusation is merely a sham to disguise discrimination based on race or national origin; on the contrary, the evidence against Okere is quite strong. Accordingly, defendants' motion for summary judgment on the Title VII claim of discriminatory suspension and termination is GRANTED.
IV. TITLE VII RETALIATION CLAIM
A prima facie case of retaliation exists if Okere demonstrates (1) he participated in a statutorily protected activity; (2) he received an adverse employment action; and, (3) a causal link exists between the protected activity and the adverse employment action. See Garza, No. 01-10382, slip op. at 10; Mayberry v. Vought Aircraft Co., 55 F.3d 1086, 1092 (5th Cir. 1995). If the prima facie case is established, the burden shifts to defendants to articulate a legitimate, nonretaliatory reason for discharge. See Rios, 252 F.3d at 380. If defendants satisfy this burden, the burden shifts back to plaintiff to adduce sufficient evidence that the proffered reason is a pretext for retaliation. See id. This final burden requires Okere to demonstrate that his termination would not have occurred "but for" his filing of the EEOC and TCHR claims. See id.
Okere's filing of the EEOC complaint was obviously protected activity. His termination is clearly an adverse employment activity. However, Okere has failed to establish a causal link between filing the EEOC claim and his ultimate termination. Defendants argue that Dr. Bounds was unaware of Okere's EEOC complaint when he terminated Okere. Yet the Court finds Okere has raised a fact question on this issue because Okere claims to have told Dr. Bounds of the claim during their August 23, 1999 meeting. See Plaintiff's Response, at 11. Even accepting Okere's claim as true for summary judgment purposes, Okere has failed to raise a question of material fact on the issue of a causal link between filing his EEOC complaint and Dr. Bounds ultimate decision to terminate him. Dr. Bounds knowledge of the claim does not, by itself, create a causal link between the adverse employment decision and the protected activity. There is overwhelming, uncontroverted evidence that those involved in the decision to discharge Okere, apart from Dr. Bounds, had no knowledge of his EEOC claim. See Defendants' Appendix, at 13-17. The chain of events that led to Okere's termination, namely the alleged theft of furniture, was set in motion on August 13, 1999. Mr. Aguirre inquired into the location of the chairs on August 16, 1999. Dr. Bounds asked Mr. Luong conduct an investigation into Okere's actions regarding the chairs no later than August 17, 1999. See id. at 16. Okere's first meeting with Mr. Blatt and Mr. Luong on this issue occurred on August 17, 1999. See id. Okere's suspension (with pay) began August 18, 1999. See id. at 35. It is undisputed that Okere did not file his discrimination claim until that same day. It is also undisputed that no one at the District could have known of the complaint prior to August 20, 1999. See Plaintiff's Appendix, Exhibit B. Okere's termination letter was dated August 24, 1999. Simply because Okere read the writing on the wall and raced to the EEOC does not create a causal connection between his EEOC complaint and his discharge. Okere has not made his prima facie case.
While the Court finds Okere has presented no prima facie case of retaliation, even if the Court accepts, arguendo, that Okere has met his prima facie burden, Defendants are still entitled to summary judgment. As stated previously, Okere's alleged theft provides a valid, nondiscriminatory justification for the District's actions. Okere has failed to show that the District's response to the theft allegations was a mere pretext for retaliation. Okere had already been suspended before anyone at the District could have known he filed an EEOC complaint. Okere has presented no evidence of pretext. Accordingly, Defendants' motion for summary judgment on the Title VII claim of retaliation is GRANTED.
V. TITLE VI PUNITIVE DAMAGES
The District argues that the Civil Rights Act of 1991 specifically bars punitive damage awards against governmental subdivisions such as the District. Okere has not addressed this point in his Response. The Court agrees with Defendants. See 42 U.S.C. § 1981a(b); Oden v. Oktibbeha County, Miss., 246 F.3d 458, 465-66 (5th Cir.), cert. denied, ___ U.S. ___, ___ S.Ct. ___, 2001 WL 744067 (2001). Accordingly, Defendants' motion for summary judgment on the Title VII punitive damages claim is GRANTED.
VI. OTHER CLAIMS
Defendants only brief Okere's claims under Title VII and his punitive damages claim under the Texas Labor Code. The Court notes that Okere's remaining claims all arise under state law. Thus, Okere's remaining claims are hereby DISMISSED WITHOUT PREJUDICE. See 28 U.S.C. § 1367(c)(3).
VII. CONCLUSION
Defendants' motion for summary judgment is GRANTED as to all Okere's Title VII claims. Okere's claims that arise under Texas law are DISMISSED WITHOUT PREJUDICE. Judgment will be entered accordingly.
THE CLERK IS DIRECTED TO IMMEDIATELY FAX THIS ORDER TO COUNSEL.
SO ORDERED.