Benneth Okpala v. City of Houston, et al

Filing

REVISED UNPUBLISHED OPINION FILED. [6641457-2] [10-20175]

Benneth Okpala v. City of Houston, et al

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Case: 10-20175

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Date Filed: 10/04/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
October 4, 2010 N o . 10-20175 S u m m a r y Calendar Lyle W. Cayce Clerk

B E N N E T H E. OKPALA, P la in t if f ­ A p p e lla n t , v. C I T Y OF HOUSTON,

D e fe n d a n t ­ A p p e lle e .

A p p e a l from the United States District Court for the Southern District of Texas (0 7 -C V -1 5 5 5 )

B e fo r e WIENER, PRADO, and OWEN, Circuit Judges. P E R CURIAM:* B e n n e t h E. Okpala (Okpala) appeals the district court's dismissal and g r a n t of summary judgment for the City of Houston (City) on his Title VII r e t a lia tio n claims and judgment as a matter of law for the City on his Title VII d is c r im in a t io n on the basis of national origin claim. We affirm.

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

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No. 10-20175 I B e n n e t h E. Okpala is a native of Nigeria, and is a naturalized citizen of t h e United States. He has a bachelor's degree in architecture from the

U n iv e r s it y of Houston, a master's degree in planning from Texas Southern U n iv e r s it y , and attended law school for some period of time. Okpala had been c e r t ifie d by the American Institute of Certified Planners, but his certification h a d lapsed by the time of trial. O k p a la was hired by the City of Houston in 1988 as a planner; he was p r o m o t e d to senior planner in 1998, and held that position in the City's Planning a n d Development Department (Department) at the time his employment was t e r m in a t e d . City planners performed such duties as reviewing and creating s h o r t - and long-term development plans, ensuring that proposed plats conformed t o the City's development ordinance and state law, and communicating those p la n s with neighborhoods and communities in the City. In September of 2005, Marlene Gafrick was appointed by Mayor Bill White t o be the Department director. Director Gafrick determined that a

r e o r g a n iz a t io n of the Department would result in more efficient use of the City's r e s o u r c e s , including its trained planners. In addition, the Development Services d iv is io n was struggling under pressure to meet state and local deadlines for plat r e v ie w during an unusually busy time of development around the City. Because t h e reorganization of the Department would result in the elimination of some p o s it io n s , the director developed a layoff plan in consultation with the division m a n a g e r s and the Selection Services Division of the City's Department of H u m a n Resources (HR). T h e City's Rule 11 provides for a "last-come, first-leave" general rule for C it y departments conducting layoffs for any of a variety of reasons, including a r e o r g a n iz a t io n of the department. Under this rule, employees are placed on a t ie r e d list based on seniority and merit score. An employee who would otherwise 2

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No. 10-20175 b e among the first to be laid off may be exempted if the department director " m a k e s a written finding that: (1) [t]he exempted employee(s) have educational o r training skills or licenses relevant to their work functions that are not p o s s e s s e d by the employee or employees who would otherwise replace them, and (2 ) [t]he retraining of the employee or employees who would otherwise replace t h e exempted employee(s) would cause a deterioration of service delivery or s e r v ic e quality by the department." 1 A fte r consultation with managers and the HR department, Gafrick d e t e r m in e d that several Department employees with less seniority than Okpala w o u ld be exempted from layoff because their skill sets were required to avoid d e t e r io r a t io n in Department services and quality. Okpala and three other senior p la n n e r s were among the employees laid off in March of 2006, despite their s e n io r it y . Those employees who were not exempted from layoff were placed, as r e q u ir e d by ordinance, on the City's reemployment list, through which they r e c e iv e d some priority consideration for other positions that opened in the City. A ll four senior planners who were laid off were African males. The senior p la n n e r s who were exempted from layoff were Shannon Teasley, an African A m e r ic a n female, Michael Grace, an African American male, Amar Mohite, an I n d ia n male, Donald Perkins, an African American male, Stanley Ikpo, an A fr ic a n male, and Jason Jeffries, a white male. A ll of the senior planners who were laid off--except Okpala--were s u b s e q u e n t l y rehired for other positions within the City. Okpala was

u n e m p lo y e d at the time of trial, despite having been placed on the City's r e e m p lo y m e n t list for one year after his layoff. O k p a la filed suit against the City and individual defendants Mayor Bill W h it e , Marlene Gafrick, and Michael Moore, claiming violations of his due

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HOUSTON, TEX., CODE § 14-141(e).

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No. 10-20175 p r o c e s s rights, 42 U.S.C. §§ 1983 and 1981, and Title VII's prohibitions against d i s c r im in a t io n on the basis of national origin and retaliation for protected a c t iv it ie s . The due process and §§ 1983 and 1981 claims were dismissed by the d is t r ic t court, and Okpala does not appeal their dismissal. The claims against t h e individual defendants have been variously dismissed by the district court or d r o p p e d by the appellant, and the only claims at issue in this appeal are against t h e City of Houston. O k p a la disputes the district court's rulings on his claims of retaliation and d is c r im in a t io n on the basis of national origin. Before trial, the district court d is m is s e d Okpala's claim of retaliation regarding his layoff, finding that the c la im had not been administratively exhausted. The district court also granted s u m m a r y judgment for the City on Okpala's claim of retaliation regarding the C it y 's failure to rehire him after he was placed on the reemployment list. The p a r tie s then proceeded to trial on the claim of discrimination on the basis of n a t io n a l origin. After both parties had rested their cases, but before the case w a s submitted to the jury, the district court granted the City's motion for ju d g m e n t as a matter of law on Okpala's discrimination claim.

II O k p a la raises four issues contesting the district court's rulings below. We a d d r e s s each in turn. O k p a la first contends that the district court erred in its finding that the C it y failed to follow the City's layoff ordinance, Rule 11, in its decision to lay him o ff. He argues that such a failure shows that the City's stated reasons for the r e o r g a n iz a t io n were pretextual. However, uncontested evidence at trial showed t h a t the Department director consulted with the human resources (HR) d e p a r t m e n t to make sure that Rule 11 was followed in the layoff. The City's R u le 11 experts, the HR department, approved the plan as conforming to Rule 4

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No. 10-20175 1 1 , as shown in testimony by Roderick Newman, manager of the HR division r e s p o n s ib le for ensuring compliance with Rule 11. E v e n had Okpala shown that the City failed to follow its own procedures in the layoff , he must also show that the procedure was adhered to differently in cases involving employees who were not members of his protected group.2 The u n c o n t e s t e d evidence shows that Rule 11 was applied similarly to employees w h o were members of the protected group and those who were not. Therefore, O k p a la has not shown pretext in the City's alleged failure to follow Rule 11.

III O k p a la also argues that the district court erred by granting the City's m o t io n for judgment as a matter of law (JMOL) on Okpala's claim of Title VII d is c r im in a t io n on the basis of national origin. Okpala has not carried his burden o f showing discrimination under the McDonnell Douglas burden-shifting fr a m e w o r k .3 A court may grant JMOL on an issue on which the party has been fully h e a r d "during a jury trial and the court finds that a reasonable jury would not h a v e a legally sufficient evidentiary basis to find for the party on that issue." 4 T h e court should "view the entire record in the light most favorable to the non-

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See Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 346 (5th Cir. 2007).

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). The plaintiff must first establish a prima facie case of discrimination by showing that the plaintiff (1) is a member of a protected group; (2) was qualified for the position at issue; (3) was subjected to an adverse employment action; and (4) was replaced by someone outside of the protected class or was treated less favorably than other similarly situated employees outside the protected class. McCoy v. City of Shreveport, 492 F.3d 551, 556 (5th Cir. 2007). The employer must rebut the presumption of discrimination raised by the prima facie case by articulating a nondiscriminatory reason for its adverse employment action. Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 345 (5th Cir. 2007). The burden then shifts back to the plaintiff to prove that the employer's proffered explanation is merely pretextual. McCoy, 492 F.3d at 557.
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FED. R. CIV. PROC. 50(a)(1).

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No. 10-20175 m o v a n t , drawing all factual inferences in favor of the non-moving party, and le a v in g credibility determinations, the weighing of the evidence, and the d r a w in g of legitimate inferences of the facts to the jury."5 The JMOL is

" p r o p e r ly granted if the facts and inferences point so strongly and o v e r w h e lm in g ly in favor of one party that the [c]ourt believes that reasonable m e n could not arrive at a contrary verdict."6 A "mere scintilla" of evidence is in s u ffic ie n t to present a question to the jury.7 O k p a la argues that Director Gafrick used the reorganization as a pretext fo r the termination of employment of the Department's African employees. Okpala has introduced no evidence, however, to contradict the testimony from t h e Department managers and director that the reorganization was necessary t o relieve the pressure on the Development Services Division to meet state and lo c a lly mandated deadlines for plat review. Okpala introduced no evidence to c o n t r a d ic t the evaluation of the skill sets of the employees who were exempted fr o m the layoff and who were considered to be critical to the continued services o f the division. Uncontroverted evidence at trial showed that Okpala's mapping a n d plat review experience was not recent, and he had not kept up with t r a n s it io n s to computer-based systems. In addition, Okpala introduced no

e v id e n c e to contradict testimony that the reorganization made the Department m o r e efficient by eliminating unused services and products, some of which were O k p a la 's projects. Last, Stanley Ikpo, who is also African, was exempted from

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Rutherford v. Harris Cnty., Tex., 197 F.3d 173, 179 (5th Cir. 1999) (citations omitted).

Id. (quoting Boeing Co. v. Shipman, 411 F.2d 365, 374 (5th Cir. 1969) (en banc), overruled on other grounds by Gautreaux v. Scurlock Marine, Inc., 107 F.3d 331 (5th Cir. 1997) (en banc)). Id. (quoting Deffenbaugh-Williams v. Wal-Mart Stores, Inc., 188 F.3d 278, 285 (5th Cir. 1999)).
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No. 10-20175 t h e layoff, and continued his employment with the Department, contradicting O k p a la 's pretext argument. O k p a la did not introduce sufficient evidence to raise a question for the jury o n the issue of discrimination on the basis of national origin.

IV O k p a la next argues that the district court erred in its determination that h e was not dismissed in retaliation for filing discrimination claims against the C it y . If there is no direct evidence of retaliation, a plaintiff may establish r e t a lia tio n with indirect evidence under the McDonnell Douglas burden-shifting fr a m e w o r k .8 Okpala has alleged, at various points in the proceedings, two d iffe r e n t acts of retaliation against him: (1) the decision to lay him off, and (2) t h e City's failure to rehire him. T h e district court dismissed Okpala's claim of retaliation with regard to h is layoff, finding that it was barred because it was not administratively e x h a u s t e d .9 We review de novo a district court's determination of whether the e x h a u s t io n requirement is satisfied.10 N e it h e r of the EEOC charges Okpala filed following his layoff can be r e a s o n a b ly construed to trigger an investigation by the EEOC of a charge of

Laxton v. Gap, Inc., 333 F.3d 572, 578 (5th Cir. 2003); Hockman v. Westward Commc'ns, LLC, 407 F.3d 317, 330 (5th Cir. 2004). To establish a prima facie case of retaliation, the plaintiff must show that "(1) he participated in an activity protected by Title VII; (2) his employer took an adverse employment action against him; and (3) a causal connection exists between the protected activity and the adverse employment action." McCoy v. City of Shreveport, 492 F.3d 551, 557 (5th Cir. 2007). See McClain v. Lufkin Industries, Inc., 519 F.3d 264, 273 (5th Cir. 2008) (citing Pacheco v. Mineta, 448 F.3d 783, 788 (5th Cir. 2006)).
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Pacheco, 448 F.3d at 788.

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No. 10-20175 r e t a lia tio n regarding Okpala's layoff.1 1 We agree with the district court that O k p a la did not fulfill the administrative exhaustion requirement, and that the c h a r g e was time-barred at the time he filed his complaint in the district court. O k p a la has also claimed that the City retaliated against him when it failed t o rehire him after his layoff from the Planning and Development Department. Though Okpala's brief does not fully present this issue, his argument does raise it , and we address it here out of an abundance of caution. The district court g r a n t e d the City's motion for summary judgment on this claim, finding that t h e r e was no admissible evidence to show a genuine issue of material fact s u p p o r t in g a claim of retaliation.1 2 We review the district court's summary ju d g m e n t decision de novo,1 3 resolving factual disputes in the summary ju d g m e n t evidence in favor of the nonmoving party.1 4 I n its ruling granting summary judgment to the City, the district court fo u n d that the direct evidence Okpala had produced to show retaliation in the C it y 's failure to rehire him was inadmissible hearsay. We review the district c o u r t's rulings on the admissibility of summary judgment evidence, subject to t h e same rules of admissibility applicable to a trial, for abuse of discretion.1 5 T h e only direct evidence Okpala produced to respond to the City's motion fo r summary judgment on the claim of retaliation was the minutes from a m e e t in g of the Igbo Union Houston, Inc. The district court assumed without
The scope of an EEOC charge is construed somewhat liberally, but the charge must be sufficient to "`trigger the investigatory and conciliatory procedures of the EEOC.'" McLain, 519 F.3d at 273 (quoting Pacheco, 448 F.3d at 788-89). Freeman v. Tex. Dep't Crim. Justice, 369 F.3d 854, 860 (5th Cir. 2004) (quoting FED. R. CIV. P. 56(c)).
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Id. at 859. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).

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Resolution Trust Co. v. Starkey, 41 F.3d 1018, 1024 (5th Cir. 1995); Tex. E. Transmission Corp. v. Amerada Hess Corp., 145 F.3d 737, 741 (5th Cir. 1998).

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No. 10-20175 d e c id in g that the minutes were admissible as a business record.1 6 However, O k p a la did not show at summary judgment, and does not advance arguments on a p p e a l, that the series of hearsay statements in the minutes were each a d m is s ib le under exceptions to the hearsay rule.1 7 The district court did not t h e r e fo r e abuse its discretion in excluding the evidence.1 8 N e it h e r has Okpala made a prima facie case for retaliation.1 9 Okpala p r o d u c e d no summary judgment evidence that he applied for positions for which h e was qualified and for which he was not hired.2 0 Likewise, Okpala produced n o evidence that there was a causal connection between his protected activities a n d the failure of any other City subdivisions to hire him.

V F in a lly , Okpala contends that the nondiscriminatory reasons given by the C it y for his termination were pretextual. As discussed above, Okpala has

in t r o d u c e d no evidence to rebut the City's legitimate, nondiscriminatory reasons fo r the termination of his employment. * * *

T h e judgment is therefore AFFIRMED.

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See FED. R. EVID. 803(6).

See FED. R. EVID. 805 ("Hearsay within hearsay is not excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rules."). Elementis Chromium L.P. v. Coastal States Petrol. Co., 450 F.3d 607, 610 (5th Cir. 2006) ("A trial court abuses its discretion when its ruling is based on an erroneous view of the law or a clearly erroneous assessment of the evidence.").
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See Laxton v. Gap Inc., 333 F.3d 572, 578 (5th Cir. 2003). See Tex. Dep't Cmty. Affairs v. Burdine, 450 U.S. 248, 253-54 n.6 (1981).

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