Opinion
CIVIL ACTION NO. 00-999 SECTION "R" (2).
December 6, 2000.
ORDER AND REASONS
Plaintiff, Glynda K. Robertson, filed this action against her former employer, the Plaquemines Parish School Board ("School Board"), alleging that her employment was terminated because of her race (white), sex (female) and age (over 40) in violation of Title VII, 42 U.S.C. § 2000e et seq., and that the School Board's tenure hearing denied her due process. Record Doc. No. 1, Complaint, ¶¶ 2, 5, 6, 7. The School Board has filed its third, unopposed, dispositive motion in this case, which once again must be denied for defendant's failure to satisfy the most fundamental requisites of such a motion.
Although plaintiff does not cite the Age Discrimination in Employment Act ("ADEA") in her complaint, that statute, rather than Title VII, provides the appropriate vehicle for her age discrimination claim. 29 U.S.C. § 623, 631.
Again, plaintiff does not state a statutory basis for her due process claim, but it appears to arise under 42 U.S.C. § 1983.
I. PROCEDURAL BACKGROUND
All parties have consented to proceed before a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). Record Doc. No. 8. Upon joint motion of both parties, the trial date has recently been continued until April 26, 2001. Record Doc. Nos. 15, 17.
Early in this action, the School Board moved to dismiss plaintiff's complaint pursuant to Fed.R.Civ.P. 12(b)(6). Although the motion was unopposed, it was denied because the well-pleaded facts in plaintiff's complaint stated a cause of action. Record Doc. No. 9. Defendant then moved for summary judgment. Although it was also unopposed, that motion was denied because it was not supported by any evidence, as required by Fed.R.Civ.P. 56(c). Record Doc. No. 13.
The School Board has now moved for summary judgment for the second time and has supported its motion with an affidavit. Record Doc. No. 14. Local Rule 7.5E of the Eastern District of Louisiana requires that memoranda in opposition to a motion be filed AND a copy be delivered to chambers eight days prior to the date set for hearing of the motion. No memorandum in opposition to defendant's Motion for Summary Judgment, set for hearing on December 6, 2000 at 11:00 a.m. without oral argument, has been timely submitted. Accordingly, this motion is deemed to be unopposed, yet it must be denied because defendant fails to present any competent summary judgment evidence showing that there is no genuine dispute as to any material facts.
II. ANALYSIS
A. Standard of Review
Summary judgment is appropriate 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 a judgment as a matter of law." Fed.R.Civ.P. 56(c). 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 it is not required to negate elements of the nonmoving party's cases Edwards v. Your Credit, Inc., 148 F.3d 427, 431 (5th Cir. 1998) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)).
When a moving party alleges that there is an absence of evidence necessary to prove a specific element of a case, the nonmoving party bears the burden of presenting evidence that provides a genuine issue for trial. "[T]here is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted."Thomas v. Barton Lodge II, Ltd., 174 F.3d 636, 644 (5th Cir. 1999) (citing Celotex Corp., 477 U.S. at 322-23; quoting Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 249-50 (1986)).
A fact is "material" if its resolution in favor of one party might affect the outcome of the action under governing law.Anderson, 477 U.S. at 248; Hamilton v. Segue Software Inc., No. 00-10541, 2000 WL 1658218, at *2 (5th Cir. Nov. 20, 2000). No genuine issue of material fact exists if a rational trier of fact could not find for the nonmoving party based on the evidence presented or, stated conversely, an issue is genuine only if the evidence is sufficient for a reasonable jury to return a verdictfor the nonmoving party. Id.; National Ass'n of Gov't Employees v. City Pub. Serv. Bd., 40 F.3d 698, 712 (5th Cir. 1994).
To withstand a properly supported motion, the nonmoving party who bears the burden of proof at trial must come forward with evidence to support the essential elements of its claim. Id. (citing Celotex Corp., 477 U.S. at 321-23). "[A] complete failure of proof concerning an essential element of the nonmoving party's case renders all other facts immaterial." Celotex Corp., 477 U.S. at 323. The Court must consider all evidence in the light most favorable to the nonmoving party. National Ass'n of Gov't Employees, 40 F.3d at 712-13.
B. Defendant's Affidavit Addresses No Material Facts
The School Board has submitted the affidavit of its attorney, Gilbert V. Andry IV, to support its argument that it is entitled to summary judgment because plaintiff failed to exhaust her administrative remedies. Andry states in his affidavit that he was personally involved, in his capacity as legal counsel, in the Robertson matter "before, during and after the tenure hearing" and that plaintiff never appealed the School Board's termination decision to the state district court. Defendant's Exh. 1.
Although defendant argues in its memorandum that Robertson's employment was terminated for cause, Andry's affidavit contains no factual allegations about defendant's reasons for firing plaintiff.
Robertson apparently was a tenured or "permanent" public school teacher. A permanent teacher whose employment has been terminated "may," not more than one year from the date of the School Board's finding, petition a court of competent jurisdiction to review the School Board's decision. La. Rev. Stat. § 17:443(B) (emphasis added). Judicial review under this statute is limited to determining whether the School Board had a rational basis, supported by substantial evidence, for its discretionary decision. Scott v. Ouachita Parish Sch. Bd., 768 So.2d 702, 711 (La.App. 2d Cir. 2000).
Neither plaintiff's complaint nor defendant's affidavit states this as a fact, but both refer to a "tenure hearing." Defendant's motion papers cite no law other than Fed.R.Civ.P. 56(b), but the Court assumes for purposes of the instant motion that plaintiff was a permanent teacher as defined by La. Rev. Stat. § 17:442 and that defendant intends to rely on La. Rev. Stat. § 17:443(B) for the proposition that plaintiff was required to appeal her termination to a state court.
Plaintiff alleges only federal claims in her complaint. Defendant provides no explanation in its motion papers (1) why Robertson should be required to appeal her federal claims under Title VII and the ADEA to the state court, rather than to the Equal Employment Opportunity Commission ("EEOC"), or (2) why any exhaustion requirement would apply to her federal due process claim. Defendant has cited no law, and my own research reveals nothing in the state statute or case law interpreting it, that requires Robertson to "exhaust her remedies" by appealing her termination to the state courts before seeking federal court review of her federal claims.
Thus, the only issue addressed by Andry's affidavit (that is, whether Robertson appealed to the state courts) is irrelevant to her claims in the instant case. Because the School Board has presented no evidence of any material undisputed facts, it has failed to establish its right to summary judgment on any of plaintiff's claims.
C. Defendant May Be Entitled to Summary Judgment on Plaintiff's Discrimination Claims upon Submission of Appropriate Evidence
Defendant clumsily persists in trying to dispose of this case in summary fashion, apparently without undertaking any discovery or legal research. Plaintiff continually fails to oppose those efforts. Certainly defendant is entitled to file dispositive motions, and the Court will grant summary judgment, but only if defendant satisfies its burden under Fed.R.Civ.P. 56 andCelotex and provides the Court with legitimate legal grounds to do so. To succeed, the School Board must show that plaintiff has no evidence to establish any essential elements of her claims as to which she bears the burden of proof, or provide competent summary judgment evidence (consisting of depositions, answers to interrogatories, admissions and/or affidavits made on personal knowledge, setting forth facts that would be admissible in evidence) demonstrating the absence of a genuine issue ofmaterial fact essential to each of plaintiff's four claims. The essential elements of plaintiff's claims are set forth below.
Under both Title VII and the ADEA, Robertson must exhaust her administrative remedies by presenting her discrimination claimsto the EEOC, not to the state courts, m a timely fashion before filing suit in federal court. 29 U.S.C. § 626(d); 42 U.S.C. § 2000e-5 (e)(1); Scott v. University of Miss., 148 F.3d 493, 514 (5th Cir. 1998); Messer v. Meno, 130 F.3d 130, 134 (5th Cir. 1997); Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1223 (5th Cir. 1995). Any charge not alleged in the EEOC complaint and reasonably expected to grow out of the EEOC investigation is barred from judicial review. Thomas v. Texas Dep't of Crim. Justice, 220 F.3d 389, 394 (5th Cir. 2000); Dollis v. Rubin, 77 F.3d 777, 781 (5th Cir. 1995). If the School Board can produce competent evidence that Robertson failed to file timely charges of race, sex and age discrimination with the EEOC, and if she fails to rebut that evidence, defendant may be entitled to summary judgment on her discrimination claims because she will have failed to exhaust her federal administrative remedies.
If Robertson filed timely charges with the EEOC or if defendant is unable to establish, without seeking discovery, whether she did, she bears the burden of showing a prima facie case of discriminatory termination based on race or sex. To do so, she must prove that (1) she is a member of a protected class, (2) she was at all times qualified for the position at issue and (3) defendant made an adverse employment decision despite her qualifications. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); Sreeram v. Louisiana State Univ. Med. Ctr. Shreveport, 188 F.3d 314, 318 (5th Cir. 1999). Similarly, to prove a prima facie case of age discrimination under the ADEA, Robertson must prove that (1) she was discharged, (2) she was qualified for the position, (3) she was within the protected class and (4) she was replaced by someone outside the protected class, someone younger, or was otherwise discharged because of her age. Brown v. CSC Logic, 82 F.3d 651, 654 (5th Cir. 1996);Bodenheimer v. PPG Indus., Inc., 5 F.3d 955, 957 (5th Cir. 1993).
Again, if the School Board can show that plaintiff cannot prove any element of her prima facie case, Celotex Corp., 477 U.S. at 322-23, defendant may be entitled to summary judgment.
If plaintiff establishes a prima facie case of any type of alleged discrimination, the burden then shifts to the defendant to articulate some legitimate, nondiscriminatory reason for the employee's rejection . . . . [S]hould the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a mere pretext for discrimination.Texas Dep't of Community-Affairs v. Burdine, 450 U.S. 248, 252-53 (1981) (quotation and citation omitted); accord Nichols v. Lewis Grocer, 138 F.3d 563, 566 (5th Cir. 1998). If defendant meets this burden (for example, by affidavit stating on personal knowledge that Robertson was terminated for good cause, was not qualified for her position and was terminated for reasons unrelated to her race, sex and age), the presumption of discrimination disappears and plaintiff "has the opportunity to prove that [defendant's] articulated reason was a pretext for discrimination." Deffenbaugh-Williams v. Wal-Mart, 156 F.3d 581, 587 (5th Cir. 1998), reh'g en banc granted, 169 F.3d 215 (5th Cir.), panel opin. reinstated in relevant part, 182 F.3d 333, 333 (5th Cir. 1999). The ultimate burden of persuading the trier of fact that defendant intentionally discriminated against plaintiff remains at all times with plaintiff. Reeves v. Sanderson Plumbing Prods., Inc., 120 S. Ct. 2097, 2106 (2000); St. Mary's Honor Ctr., 509 U.S. at 507; Deffenbaugh-Williams, 156 F.3d at 587.
Defendant's burden is one of production, not persuasion. The School Board must merely set forth, through admissible evidence, "reasons for its actions which, if believed by the trier of fact, would support a finding that unlawful discrimination was not the cause of the employment action." St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 507 (1993) (emphasis in original). Thus, the employer need only articulate a legitimate, nondiscriminatory reason for its action, regardless of that reason's ultimate persuasiveness. Bodenheimer v. PPG Indus., Inc., 5 F.3d 955, 958 (5th Cir. 1993).
"An employer's reason cannot be shown to be a `pretext for discrimination' unless the plaintiff introduces some evidence, whether circumstantial or direct, that permits the jury to believe that the reason was false and that illegal discrimination was the actual reason." Nichols, 138 F.3d at 566 (citing St. Mary's Honor Ctr., 509 U.S. at 515; Swanson v. General Servs. Admin., 110 F.3d 1180, 1185 (5th Cir. 1997)) (emphasis in original).
Defendant's reasons for terminating Robertson's employment are uniquely within the knowledge of the School Board and would not require defendant to propound any discovery to ascertain those reasons. In each of its dispositive motions, defendant has argued that it had good cause to fire plaintiff, but has never provided the Court with any evidence of these alleged facts. Assuming arguendo that plaintiff can establish a prima facie case of race, age and/or sex discrimination, defendant is free to provide the Court with competent summary judgment evidence that Robertson was fired for some legitimate, nondiscriminatory reason. If plaintiff then fails to rebut defendant's evidence with her own competent evidence that would permit the jury to believe that the articulated reason was false and that illegal discrimination was the actual reason, defendant may be entitled to summary judgment on her discrimination claims. The current record addresses none of these material matters.
D. Defendant May Be Entitled to Summary Judgment on Plaintiffs Due Process Claim upon Submission of Appropriate Evidence
Robertson claims in her complaint that the School Board's tenure hearing denied her due process. "A tenured teacher has a constitutionally protected property interest in continued employment. All that federal due process requires, however, is that the teacher be given notice and an opportunity to be heard prior to termination." Gaulden v. Lincoln Parish Sch. Bd., 554 So.2d 152, 155 (La.App. 2d Cir. 1989) (citing Franceski v. Plaquemines Parish Sch. Bd., 772 F.2d 197 (5th Cir. 1985) (citingBishop v. Wood, 426 U.S. 341 (1976))); accord Westley v. Terrebonne Parish School Bd., 656 F. Supp. 499, 501 (E.D. La. 1987).
The School Board is free to provide the Court with competent summary judgment evidence that Robertson was given notice and an opportunity to be heard prior to termination of her employment. That information is within defendant's knowledge. If unrebutted by plaintiff, such evidence may entitle defendant to summary judgment on plaintiffs due process claim.
CONCLUSION
Accordingly, for the foregoing reasons, IT IS ORDERED that defendant's motion for summary judgment is DENIED.