Opinion
3:02-CV-0406-P
January 15, 2004
MEMORANDUM OPINION AND ORDER
Plaintiff, a teacher's assistant, claims that she was sexually harassed by the teacher she was assigned to assist in violation of Title VII of the Civil Rights Act of 1964. Defendant has filed a motion for summary judgment. After considering the motion, the briefing, the summary-judgment evidence, and the applicable law, the Court GRANTS the relief requested.
Defendant filed its motion on May 5, 2003. Plaintiff submitted her Response to Defendant's Motion for Summary Judgment on June 18, 2003. Defendant filed its Reply to Plaintiff's Response to Motion for Summary Judgment on July 3, 2003.
I. Factual Background
Plaintiff Lisa Sweet was initially hired by Defendant Dallas independent School District in 1991 as a nurse assistant. Plaintiff was a teacher's assistant at the Multiple Careers Magnet Center, a vocational training facility, from August 1996 through February 2000, when she was transferred to Seagoville Alternative School. Plaintiff assisted Jennifer Hudson during the 1997-98 and 1998-99 academic years. During that time, Timothy Brisco, another teacher at the school, called her "Sweet Dog" on numerous occasions. She complained to her principal, Dr. Pipkins, three times. At some point, Dr. Pipkins met with Mr. Brisco and instructed him not to call Plaintiff "Sweet Dog" anymore. Mr. Brisco complied.
Dr. William Quinones took over as principal in August 1998. He formally reprimanded Plaintiff on October 1, 1998, and November 13, 1998, for certain actions involving her interaction with Ms. Hudson and students. Contending that the reprimand was "unfounded, without merit, and discriminatory in . . . nature," Plaintiff filed a grievance according to DISD procedure. The relief sought by Plaintiff was that "[a]ll harassment and intimidation [should] cease." The grievance was ultimately denied, in a decision dated March 17, 1999, because there was no evidence to suggest that Dr. Quinones had done anything improper.
On November 11, 1998, Plaintiff reported to Dr. Quinones that she had been harassed by Mr. Brisco. According to Plaintiff, she had brought some clothes to be cleaned at the school's "dry cleaning cluster," for which Mr. Brisco was responsible. In front of some students, Mr. Brisco allegedly made fun of Plaintiff's clothes and said that Plaintiff's sister was "crazy." Mr. Brisco also stated that Plaintiff and her sister "had big titties." Plaintiff testified at deposition that she "explained" the nature of Mr. Brisco's comments to Dr. Quinones.
Plaintiff sent DISD District 9 Superintendent Dr. Leon Hayes a letter, dated November 15, 1998, complaining of "abusive verbal comments" made by Mr. Brisco on November 11 and 12. She questioned the efficacy of Dr. Quinones' response to her complaints, writing that his failure to do more was "an unprofessional decision," adding that "it was unfair to me because he allowed this employee to continue to harass and insult me after I reported to him Mr. Brisco['s] verbal abusive comment." The letter indicates that copies were sent to Dr. Quinones, Dr. Hayes, and union representative Michael Grant. This letter does not describe the nature of the "abusive comments." The decision issued in connection with Plaintiff's grievance over Dr. Quinones' reprimand makes no allusion to Mr. Brisco's "abusive comments."
Plaintiffs Mid-Year Performance Check List, dated December 12, 1998, identified areas of her work performance that needed improvement, specifically, reducing tardiness and consistently assisting with student instruction in the classroom. This evaluation was supported by reports from Ms. Hudson detailing various incidents she thought worthy of documentation, such as working on crosswords or sleeping during class time. On May 17, 1999, Plaintiff Received her year-end performance appraisal, which found her performance to be "below expectations." No annual pay increase was available to Plaintiff because of her evaluation. Plaintiff filed a grievance about the year-end performance appraisal.
The next fall, Plaintiff was assigned to work as a teacher's assistant in Mr. Brisco's classroom. Dr. Quinones initially offered the position to Bob White, who preferred to stay where he was. At her deposition, Plaintiff testified that Mr. Brisco sexually harassed her by saying such things as, "[Y]ou need a man, you need to come over to my house, and I [Plaintiff] need to work off — work some body parts, referring to my stomach . . ." She further stated that students began to echo Mr. Brisco's remarks. Plaintiff further testified that Mr. Brisco would "brush up against [her]" and "try to block [her] movements when [she] worked on the computer." In addition, "[h]e would allow the students to harass me verbally. He would curse me out in front of coworkers. He would say derogatory comments to me, like, I'm crazy, and why are you taking medication?" These remarks, Plaintiff admitted, were "not directly" sexual or gender related.
At deposition, Plaintiff stated that she "verbally discussed" Mr. Brisco's behavior with Dr. Quinones, who said he would talk to Mr. Brisco about it. Plaintiff also stated that she reported Mr. Brisco's behavior to DISD's Executive Director of Employee Relations, Pamela Carroll, and the District's Manager of Intergovernmental Relations, Phyllis McDonald, verbally and in writing. Plaintiff admits that she did not tell Ms. Carroll or Ms. McDonald that the harassment was sexual or that Mr. Brisco was touching her inappropriately. Plaintiff claims she also wrote letters to these women, but she cannot Recall whether she mentioned that Mr. Brisco was touching her inappropriately, but Recalls writing (in one of the letters) that he had been making sexual comments to her. However, no copy of any letter from plaintiff complaining of sexual harassment has been presented in evidence. Dr. Quinones, Ms. Carroll, and Ms. McDonald each deny that Plaintiff told them about sexual harassment of any kind.
On November 11, 1999, a Level in hearing was held on Plaintiff's grievance concerning her previous year's evaluation. Plaintiff stated at her deposition that she "told the panel Dr. Quinones . . . had assigned me to work with a teacher knowing that I had reported harassments to him prior to assigning me to his classroom . . ." According to Plaintiff, Dr. Quinones told the panel that Mr. Brisco's harassment "wasn't sexual." Plaintiff admits she did not tell the panel that the harassment was sexual; she assumed they would ask her what she meant by "harassment," but they never did.
At her deposition, Plaintiff indicated that Mr. Brisco again made sexual comments and touched her breast on November 15, 1999. That same day, Plaintiff wrote a letter to the DISD School Board Administrators, declaring that she was "in desperate need of help to defend my job, character and supportive reputation as a Teacher Assistant." She related that she had been wrongly accused of various acts since Dr. Quinones became principal and was in a "constant battle to defend [her] self by filing grievances, [making] verbal and written responses, [and securing] representation from union representative Michael Grant." She claimed that she had reported this "harassment" to Timothy Brisco has verbally harassed me several times which I have reported to Dr. Quinones verbally and writtenly [sic]." She complained that "[t]hese discrimina[tory] harassing incidents have created a hostile work [environment] and [have] affected my health as well as my [fulfillment of my] job responsibilities." The letter does not specify that Mr. Brisco was sexually harassing Plaintiff. Rather, she merely mentioned a "hostile work environment" because, in her words, "I [had] mentioned it to Dr. Quinones, and I just would assume if I wrote down, hostile work environment, they would know, you know, what that was and would discuss that with me." Plaintiff delivered the letter to Robert Payton, Associate Superintendent, as well as Bill Rojas, DISD Superintendent.
Mr. Payton responded to Plaintiff by letter dated December 3, 1999. He related that he had spoken with "the appropriate individuals" and informed Plaintiff that Dr. Hayes and Ada Williams "are reviewing [her] concerns." Mr. Payton indicated that he was aware that Plaintiff was "awaiting a decision from the Level 3 panel regarding the issues that you addressed in your letter." He directed Plaintiff to contact Ms. Williams after the panel made its decision, "so that total closure can be achieved."
In a decision rendered on December 17, 1999, the panel held the 1998-99 evaluation in abeyance and ordered that her 1998-99 appraisal be based on her 1999-2000 performance. The panel also Recommended that Plaintiff be transferred to another school.
Plaintiff spoke with Ada Williams about Mr. Brisco's harassment in December 1999 and January 2000. At her deposition, she stated that she "use[d] the term sexual or physical harassment with regard to Mr. Brisco" when she spoke with Ms. Williams. Plaintiff admits, however, that she did not tell Ms. Williams that Mr. Brisco had touched her breasts or made any comments about her with regard to Mr. Brisco" when she spoke with Ms. Williams. Plaintiff admits, however, that she did not tell Ms. Williams that Mr. Brisco had touched her breasts or made any comments about her breasts or her sexual activity. According to Plaintiff, Ms. Williams told her that "she was going to have — try to have me transferred out of that school building. They were working on trying to have me transferred."
Plaintiff also testified that she spoke with Ms. Williams in December 1998.
In January 2000 Plaintiff reported to her union representative Michael Grant that, sometime in the fall of 1999, Mr. Brisco had taken a picture of her without her permission and that it had been posted on a television in Ms. Hudson's classroom. Plaintiff admits that she does not consider the taking of her photograph constitutes sexual harassment, although "it was offensive to [her]."
On February 11, 2000, Dr. Quinones instructed Plaintiff to report to his office for a conference. According to Michael Ayoob, a school counselor, Plaintiff "was very upset and began to shout at Dr. Quinones" while students were still in the classroom. When Dr. Quinones threatened to call the police, Plaintiff said that she would file harassment charges against him. Five days later, Dr. Quinones transferred Plaintiff to another classroom. Rather than go to the new classroom, Plaintiff went to the teachers' lounge to cry. When Plaintiff refused to go back to the classroom, Dr. Quinones threatened to "call the police on [her]." Dr. Quinones formally reprimanded Plaintiff for leaving campus without permission and for insubordination. Plaintiff again accused Dr. Quinones of harassing her. She was transferred to Seagoville Alternative School the next day.
Plaintiff filed charges of discrimination and retaliation with the Equal Employment Opportunity Commission in July 2000. She submitted a letter in January 2001 outlining her charges. The EEOC concluded that there is reasonable cause to believe that Plaintiff was sexually harassed by Mr. Brisco and that Dr. Quinones rated her performance as "below expectations" in retaliation for her "objecting to and complaining about sexual harassment by the classroom teacher and harassment by the principal." The Commission further found there to be reasonable cause to believe that Plaintiff was discriminated against when she was denied a wage increase for the 1998-99 school year and her 1998-99 performance was not corrected on the basis of her 1999-2000 performance, as required by the December 17, 1999, grievance decision. Defendant rejected the Commission's proposed Conciliation Agreement, which would have awarded Plaintiff $300,000 in damages plus certain injunctive relief. Plaintiff Received a right-to-sue letter on November 29, 2001, and filed the present suit on February 26, 2002.
Plaintiff's Complaint asserts claims under Title VII of the Civil Rights Act of 1964, as amended, for sexual harassment (sexually hostile work environment) and for sex discrimination (failure to promote). Though the EEOC found reasonable cause to believe that Defendant retaliated against Plaintiff, the Complaint does not assert a claim of retaliation. Defendant now moves to dismiss on grounds that Plaintiff cannot, as a matter of law, prevail on any claim based on quid pro quo harassment, a hostile work environment, gender discrimination, or retaliation. In her Response, Plaintiff argues that genuine issues of material fact preclude a grant of summary judgment with respect to the hostile work environment and retaliation.
II. Summary-judgment Standard
Summary judgment shall be rendered when the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and 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 (1986). The moving party bears the burden of identifying the basis for its belief that there is an absence of a genuine issue for trial, and pointing out those portions of the Record that demonstrate such an absence. Id. Once the movant has made this initial showing, the nonmoving party must present competent summary-judgment evidence to show a genuine issue of material fact. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Such evidence consists of specific facts that show a genuine fact issue, such that a reasonable jury might return a verdict in the nonmoving party's favor. Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). All evidence and the reasonable inferences to be drawn therefrom must be viewed in the light most favorable to the party opposing the motion. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962). Mere conclusory statements, speculation, and unsubstantiated assertions, however, are insufficient to fend off a motion for summary judgment. Anderson, 477 U.S. at 248-50; Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1429 (5th Cir. 1996) (en banc); Abbot v. Equity Group, Inc., 2 F.3d 613, 619 (5th Cir. 1993).
If the nonmoving party fails to present probative evidence with respect to an essential element of his case, on which he bears the burden of proof at trial, summary judgment is mandatory. Celotex, 477 U.S. at 322-24; Washington v. Armstrong World Indus., Inc., 839 F.2d 1121, 1122 (5th Cir. 1988). A motion for summary judgment cannot be granted simply because there is no opposition, even if the failure to oppose it violates a local rule. Hibernia Nat'l Bank v. Admin. Central S.A., 716 F.3d 1217, 1279 (5th Cir. 1985). But if the nonmovant fails to provide a response identifying the disputed issues of fact, the Court is entitled to accept the movant's description of the undisputed facts as prima facie evidence of its entitlement to judgment. Eversly v. Mbank Dallas, 843 F.2d 172, 173-74 (5th Cir. 1999).
III Sex Discrimination — Sexual Harassment
Under Title VII of the Civil Rights Act of 1964, it is "an unlawful employment practice for an employer . . . to discriminate against any individual with respect to [her] compensation, terms, conditions, or privileges of employment because of such individual's sex." 42 U.S.C. § 2000e-2(a)(1) (2001). A Title VII violation may be established by proving that discrimination based on gender has created a hostile or abusive working environment. Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 66 (1986). Under Fifth Circuit law, to establish liability based on a hostile work environment, a plaintiff must present evidence proving the following:
(1) The employee belongs to a protected group;
(2) The employee was subject to unwelcome sexual harassment;
(3) The harassment complained of was based upon sex;
(4) The harassment affected a "term, condition or privilege of employment;" and
(5) The employer knew or should have known of the harassment and failed to take prompt remedial action.See Woods v. Delta Beverage Group, Inc., 284 F.3d 642, 655 (5th Cir. 2001); Williamson v. City of Houston, 148 F.3d 462, 465 (5th Cir. 1998).
Defendant argues that it is entitled to summary judgment on Plaintiff's quid pro quo claim because (1) Mr. Brisco was not Plaintiff's supervisor, (2) he took no tangible employment action against Plaintiff, and (3) Defendant DISD took no tangible employment action against Plaintiff. Plaintiff does not allege in her Complaint and does not argue in her Response that she is entitled to Recover on this theory. To the extent that Defendant's motion is premised on this theory of liability, it is DENIED as MOOT.
With respect to Plaintiff's hostile-work-environment claim, Defendant argues that it is entitled to summary judgment because (1) the alleged harassment was neither severe nor pervasive; (2) there is no evidence that Defendant knew or should have known of the harassment; and (3) Defendant has demonstrated its right to prevail on the affirmative defense set forth in Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765 (1998) and Faragher v. City of Boca Raton, 524 U.S. 775, 807-808 (1998). The Court dispatches the third argument without difficulty. Defendant contends and Plaintiff does not dispute that Mr. Brisco was a coworker and not a supervisor, despite the fact that he was considered Plaintiffs "supervisory teacher." The Court accepts that Plaintiff and Mr. Brisco were coworkers. The Ellerth/Faragher defense does not apply to claims of a hostile work environment created by coworkers. Wyatt v. Hunt Plywood Co., 297 F.3d 405, 411 (5th Cir. 2002) (Ellerth and Faragher establish the legal standard for "supervisors only"). Defendant cannot obtain summary judgment by establishing the affirmative defense announced in Ellerth and Faragher.
The court finds that prior to November 15, 1999, plaintiff's evidence does not demonstrate that the sexual harassment she experienced was so severe and pervasive that it altered the conditions of her employment and created an abusive working environment. To constitute an unlawful hostile environment, the environment must have been both subjectively and objectively offensive, in that a reasonable person would find it hostile and abusive. In making this determination, the court must look at the totality of 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." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21-22 (1993). Simple teasing, offhand comments, and isolated incidents, unless extremely severe will not amount to a discriminatory change in the terms and conditions of employment. Faragher, 524 U.S. at 788. Although plaintiff complains of much harassment, she admits that much of it was not sexual harassment. With respect to claims of sexual harassment, over a period of one year, plaintiff complains that Brisco called her "Sweet Dog" on numerous occasions, establish a severe and pervasive sexually hostile work environment.
Plaintiff also complains that on November 15, 1999, Brisco made sexual comments to her and touched her breast. The court finds that Brisco's conduct of November 15 1999, considered in light of his prior conduct, is sufficiently serious to constitute unlawful sexual harassment. That same day, plaintiff wrote a letter to the DISD School Board Administrators complaining of harassment on the job. Importantly, in her letter of November 15 to the DISD, plaintiff does not mention Brisco's conduct of that day and does not specifically mention any type of sexual harassment. Instead, plaintiff states concerns that she has been falsely accused by teachers and other staff personnel. Plaintiff also complains in the letter that she has been forced by her principal, Mr. Quinones, to sign documents without "evidence, witness, or proof of any district violation policies [sic]." Plaintiff further states that she has reported these incidents to district personnel Ada Williams, Pamela Carroll, and Phyllis McDonald. Plaintiff also states in her letter of November 15 that Brisco "verbally harassed me several times. . . ." However, Plaintiff does not describe or identify the alleged harassment as sexual harassment.
The court notes that Carroll and McDonald testified that plaintiff's complaints to them never included complaints of sexual harassment. Plaintiff admitted th is in her deposition testimony.
Plaintiff also testified that she reported Mr. Brisco's harassment to the DISD Executive Director of Employee Relations (Ms. Carroll) verbally and in writing. Additionally, although
Plaintiff testified as follows:
Q. What specifically did you tell Pamela Carroll and Phyllis McDonald about . . . Mr. Brisco?
A. I told Pamela Carroll that — that Dr. Quinones had assigned me to him, and he does nothing but harass me in his classroom. And if it's not verbal, it's something that he's doing inappropriate to my body parts. And she would tell me that she knew him and that he had visited her home before.
Q. By she, you mean Pamela Carroll?
A. Pamela Carroll, yes.
Q. Is it your testimony that you specifically told Ms. Carroll that Mr. Brisco was touching you inappropriately?
A. I told her he was harassing me. I didn't say — just didn't say, touching me, at the time. I was still alot upset, but I did also mention to her that when I was in the classroom with him, he would just allow the students to harass me, too. And at that . . . point, she told me that I needed to be transferred away from him.
Q. So . . . you did not tell Pam Carroll that Mr. Brisco was touching you inappropriately, correct?
A. Yes.
Q. Did you mention to Phyllis McDonald that Mr. Brisco was touching you appropriately?
A. No, I didn't.
Sweet Depo. at 74-76.
Elsewhere, Plaintiff testified about her october 5, 1999, conversation with Pamela Carroll,
Q. Okay. And now in your [EEOC letter] you state that on October 5th, 1999, you spoke to Pamela Carroll, which I believe was earlier than you — the report that we —
A. Yeah.
Q. — that we just talked about.
A. Yeah. I don't recall the date on that.
Q. And did you make a verbal report about Tim Brisco's harassment?
A. Yes.
Q. Did you specify that the harassment was sexual or gender-related in nature.
A. Yes, I did. I said it was a lot of — he would verbally harass me. She didn't ask me exactly in detail, and I didn't volunteer it. I was just telling her that I was just going through a lot of harassment with the principal and him and he would verbally harass me.
Q. Did you tell Ms. Carroll that the harassment was sexual?
A. No.
Sweet Depo. at 76-78.
Plaintiff agreed that she "gave both of them [McDonald and Carroll] a written letter of what happened" but "didn't keep a copy . . ." When asked if she specified that Mr. Brisco was touching her inappropriately, she answered:
A. I — the letter? I think I did. I had — I don't remember all what was in that particular letter because I was very, very emotionally distressed.
Q. In this letter, did you specify that Mr. Brisco was making sexual comments to you?
A. Yes.
Q. Who was this letter addressed to?
A. To Pamela Carroll or either Phyllis McDonald. I don't remember — I don't recall which one I gave it to, but I went to their office personally to hand deliver it to them.
Sweet Depo. at 76-77.
Plaintiff told a Level III hearing panel that Mr. Brisco had been harassing her, she did not specify that it was sexual harassment. Finally, there is no evidence that plaintiff ever reported Brisco's conduct of November 15, 1999 to Mr. Quinones. In short, there is no evidence that plaintiff ever brought Brisco's misconduct of November 15 to the attention of any appropriate DISD employee despite numerous opportunities to do so. Plaintiff's written memo to the EEOC detailing the alleged harassment experienced by plaintiff does not indicate that plaintiff ever specifically told anyone at the DISD about sexual harassment despite the numerous written and oral complaints she made. This same memo does not indicate any complaints to Mr. Quinones after November 15, 1999, either about sexual harassment or any other type of harassment. Further, plaintiff never complained to anyone at the DISD that her complaints of sexual harassment were not being addressed. The Fifth Circuit has noted that although the Ellerth/Faragher defense is not applicable in cases, such as this one, involving sexual harassment by a co-worker, the second prong of the defense can be instructive. Woods v. Delta Beverage Group, Inc., 274 F.3d 295, 300 fn.3 (5th Cir. 2001). The summary judgment record in the instant case demonstrates that plaintiff did not reasonably take advantage of opportunities to inform DISD of her allegations that she was being sexually harassed.
Plaintiff testified as follows:
Q. Did you speak . . . to this panel about your sexual harassment?
A. I brought it up. Yes, I did.
Q. And what exactly did you say?
A. I told the panel that Dr. Quinones, the principal at Multiple Careers, had assigned me to work with a teacher knowing that I had reported harassments to him prior to assigning me to his classroom and —
Q. Okay. Let me stop you there and ask you this: What harassment did you report to the panel that you received from Mr. Brisco, I presume?
A. I didn't present any. I was assuming that they would ask me the questions exactly like you did, but they never did. They just went on to another question.
Sweet Depo. at 48-49.
In summary, the court finds that the sexual harassment of which plaintiff complains prior to November 15, 1999 was not severe or pervasive enough to create a hostile work environment. After November 15, 1999, plaintiff was subjected to unlawful sexual harassment. However, after November 15, although she complained several times to various DISD personnel of other specific types of harassment, plaintiff never complained of sexual harassment. Plaintiff acknowledges in her deposition that she did not specifically mention sexual harassment on the several occasions when she made complaints to various district personnel or when she testified at her Level III hearing in November 1999. However, plaintiff states that because she used the word "harassment", she assumed she would be asked about her specific complaints. The court finds this statement is not reasonable in light of the summary judgment Record in this case. First, plaintiff was undoubtedly aware of the district's prohibitions against sexual harassment because she attended district training sessions regarding sexual harassment on at least two occasions, in March 1999 and October 1999. Second, Plaintiff made numerous specific complaints to various district personnel about various other types of conduct that she referred to as harassment. Thus, it is clear that plaintiff knew how to make specific complaints about specific issues. Third, there is no evidence that plaintiff ever specifically complained of sexual harassment in any of the written or oral complaints she made to district personnel in November or December 1999, or in her testimony at the Level III hearing in November 1999. In this context, it is simply not realistic to expect that the DISD would know to ask plaintiff whether she really meant sexual harassment when she was complaining of so many other types of harassment. Because plaintiff has failed to establish a fact issue as to whether the DISD knew of her allegations of sexual harassment after November 15, 1999, summary judgment is GRANTED in favor of the DISD on plaintiff's hostile work environment claim.
IV. Sex Discrimination — Disparate Treatment
Plaintiff's second claim is that "Defendant intentionally discriminated against [her] because of her sex, in violation of Title VII by failing to properly promote [her] or properly assign her or advance her career." In response to an interrogatory, Plaintiff explained that a male teacher's aide (Bob White) was offered the choice whether to work with Mr. Brisco. Plaintiff also claims that "she was docked one day's salary." Although Plaintiff failed to respond to the portion of Defendant's motion seeking summary judgment on her disparate-treatment claim, the Court considers whether the Record indicates that Defendant is entitled to judgment as a matter of law. See Hibernia Nat'l Bank v. Admin. Central S.A., 776 F.2d 1277, 1279 (5th Cir. 1985).
How this loss of salary was discriminatory is not readily apparent from the summary-judgment evidence. Plaintiff offered no explanation in her Response.
When a plaintiff alleges disparate treatment based on sex, "liability depends on whether the protected trait actually motivated the employer's decision." Reeves v. Sander son Plumbing Prods., Inc., 530 U.S. 133, 141 (2000) (citing Hazen Paper Co. v. Biggins, 507 U.S. 604, 610 (1993)). That is, the plaintiff's sex must have "actually played a role in the employer's decision-making process and had a determinative influence on the outcome." Id. Plaintiffs must prove intentional discrimination through either direct or indirect evidence. Price v. Marathon Cheese Corp., 119 F.3d 330, 336 (5th Cir. 1997). Direct evidence of discrimination is evidence that proves the defendant acted with discriminatory intent, without the need for inference or presumption. Mooney v. Aramco Serv. Co., 54 F.3d 1207, 1217 (5th Cir. 1995). If direct evidence is unavailable, as is typically the case, the plaintiff may create an inference of discrimination by using the familiar McDonnell Douglas/St. Mary's burden-shifting framework. Rutherford v. Harris County, 197 F.3d 173, 180 (5th Cir. 1999).
To defeat a motion for summary judgment, a plaintiff relying on indirect evidence must first establish a prima facie case of discrimination. Blow v. City of San Antonio, 236 F.3d 293, 296 (5th Cir. 2001). Taking Plaintiff's failure-to-promote claim at face value, Defendant argues that Plaintiff cannot establish a prima facie case of discrimination based on a failure to promote because she cannot show that any opportunity for promotion was available or that any male employee was treated more favorably. See Def.'s Br. at 19 (citing Bauer v. Albemarle Corp., 169 F.3d 962, 966 (5th Cir. 1999)). A prima facie case of such a claim is demonstrated by proof that (1) Plaintiff is a member of a protected class, (2) she was qualified for her position, (3) she suffered an adverse employment action, and (4) others similarly situated were more favorably treated. Rutherford, 197 F.3d at 184; 42 U.S.C. § 2000e-2(a) (defining "unlawful employment action"). Plaintiff has presented evidence that Mr. White was given a choice whether to work as Mr. Brisco's teaching assistant, while she was not. Defendant does not dispute the first two elements, and it is arguable that a male was treated more favorably than Plaintiff was treated. At issue is whether being denied the privilege of declining to work with a particular teacher is a cognizable adverse employment action under Title VII However, even assuming that plaintiff has established a prima facie case, plaintiff has not shown the existence of a fact issue as to whether Defendant's legitimate reasons for its conduct are pretextual.
Defendant asserts that "any employment actions taken against Ms. Sweet by the D.I.S.D. . . . were based on her poor performance, her unprofessional behavior, and her continual conflicts with Dr. Quinones." Defs Br. at 20. The Court is satisfied that these are legitimate reasons for not offering Plaintiff a choice in the matter, and these reasons do not appear to be unlawfully discriminatory. Nothing in the Record suggests that these reasons were a pretext for discriminating on the basis of sex. Because Plaintiff has failed to demonstrate the existence of a genuine issue of material fact concerning Defendants' discriminatory intent, summary judgment is GRANTED as to Plaintiff's claim of sex discrimination.
V. Retaliation
The Court notes at the outset that Plaintiff did not complain of unlawful retaliation in her Complaint. The parties, however, have joined the issue in their briefing. The Court therefore considers the merits of this unasserted claim. Retaliation claims are subject to the same burden-shifting analysis used for claims of discrimination based on indirect evidence. Fabela v. Socorro Indep. Sch. Dist., 329 F.3d 409, 415 (5th Cir. 2003). A prima facie case of retaliation may be established by proof that (1) the plaintiff engaged in protected activity; (2) she was subjected to an adverse employment action; and (3) there was some causal link between the protected activity and the adverse action. Green v. Adm'rs of the Tulane Educe. Fund, 284 F.3d 642, 657 (5th Cir. 2002).
Defendant contends that it is entitled to summary judgment because (1) Plaintiff never reported any sexual harassment and thus never engaged in a protected activity; (2) she suffered no adverse employment action in being transferred to Seagoville; and (3) the panel considering Plaintiff's second grievance (concerning her 1998-99 evaluation) Recommended that Plaintiff be transferred to another school irrespective of her claims of sexual harassment.
Again the court assumes Plaintiff engaged in protected activity and has established a prima facie case. Plaintiff's prima facie case raises a presumption of retaliation, which the defendant may rebut by articulating legitimate, nondiscriminatory reasons for its actions. See Shackleford v. Deloitte Touche, LLP, 190 F.3d 398, 404 (5th Cir. 1999). If the employer carries its burden, the mandatory inference drops out of the picture. See Reeves v. Sanderson Plumbing Prods., Inc., 533 U.S. 133, 143 (2000). At this point, the plaintiff must adduce evidence that the proffered reason is pretextual. Grizzle v. Travelers Health Network, Inc., 14 F.3d 261, 267 (5th Cir. 1994). In the end, it remains to the plaintiff to demonstrate a causal connection between her protected activity and the employer's adverse employment action. "To demonstrate causation, an employee must show that `but for' the protected activity, the adverse employment action would not have taken place." Green v. Adm'rs of the Tulane Educe. Fund, 284 F.3d 642, 657 (5th Cir. 2002) (citing Seaman v. CSPH, Inc., 119 F.3d 297, 301 (5th Cir. 1999)).
Defendant maintains that Plaintiff's negative performance evaluations were based on "her performance, her unprofessional behavior, and her continual conflicts with Dr. Quinones." Defs Br. at 17. See also Defs Reply at 10 (Plaintiff's "evaluation (and any corresponding lack of pay raise) was based upon Plaintiff's extensively documented poor job performance, and nothing more."). Furthermore, contends Defendant, "Plaintiff has produced no evidence suggesting that Defendant's reason was pretextual." Id. (emphasis in original). It is undisputed that Dr. Quinones reprimanded her before Mr. Brisco harassed her. The summary-judgment Record contains numerous complaints concerning Plaintiff's job performance as Ms. Hudson's assistant, at least six of which predate any report of harassment. Ms. Hudson detailed her concerns in a three-page letter to Dr. Quinones, which Defendants submitted to the Court. Although the Record indicates that Plaintiff has consistently insisted that Ms. Hudson's complaints were unfounded and discriminatory, she has not presented the Court any evidence (other than her vehement denials) that would suggest that Ms. Hudson's complaints were false. She has presented no objective evidence to refute Ms. Hudson's complaints and no reason to believe they are unlawfully motivated. Plaintiff has thus failed to present facts that would give a reasonable person a basis for believing the reasons given for her poor evaluation were pretextual. Summary judgment is GRANTED in favor of Defendant as to any claim of retaliation that might be raised.
It is so ordered.