Williams v. Monroe

Filing 31

MEMORANDUM RULING re 25 MOTION for Summary Judgment filed by City of Monroe, Quentin Holmes, Jamie Mayo. Signed by Magistrate Judge Karen L Hayes on 1/29/15. (crt,Crawford, A)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
MONROE DIVISION
BOBBY WILLIAMS

*

CIVIL ACTION NO. 13-2328

VERSUS

*

MAG. JUDGE KAREN L. HAYES

CITY OF MONROE, MONROE
*
TRANSIT, ET AL.
MEMORANDUM RULING
Before the court is a motion for summary judgment [doc. # 25] filed by defendants City
of Monroe – Monroe Transit, Jamie Mayo, and Quentin Holmes. With the consent of all parties,
the District Court referred the above-captioned case to the undersigned magistrate judge for the
conduct of all further proceedings and the entry of judgment, 28 U.S.C. § 636(c). For reasons
assigned below, the motion for summary judgment is GRANTED, and plaintiff’s claims are
DISMISSED, with prejudice.
Procedural History
On July 24, 2013, Bobby Williams filed the instant pro se complaint against his former
employer, the City of Monroe – Monroe Transit (“City” or “City of Monroe”), apparently
pursuant to 42 U.S.C. § 1983 and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et
seq.1 His original complaint reads, in its entirety,

1

Williams attached to his complaint a copy of an Equal Employment Opportunity
Commission (“EEOC”) right to sue notice. (Compl., Exh.). The notice, however, concluded that
the EEOC was unable find that the information established the violation of any statute. Id.
Williams also attached a copy of a form entitled “Category VII” which listed a series of
violations with an “X” marked next to the violation for “[a]bsent without proper notification to
Supervisor for 3 consecutive days.” (Compl. Exh.).
Williams wrote on the civil cover sheet that his cause of action arose under 42 U.S.C. §

Suing for
Wrongful Termination
Harassment
employment Discrimination
and retaliation
The amount I am suing for $ 5.000.000
(Compl.) (spacing and punctuation in the original).
On May 20, 2014, Williams filed a motion for leave to amend his complaint to join
additional defendants, Monroe Mayor Jamie Mayo and the Monroe Chief of Police Quentin
Holmes, as a result of a purported October 23, 2012, “attack” on Williams, ordered by Mayo and
carried out by Holmes after Williams stated at the “city commission” (presumably city council)
meeting that he had filed an EEOC complaint. (M/Amend [doc. # 18]). Williams further alleged
that he was “receiving treatment for anxiety and depression and hardship for $5,000,000.” Id.
The court denied Williams’ motion, and, instead, ordered him to file an amended
complaint to allege specific facts sufficient to state a claim for relief. (June 17, 2014, Order [doc.
# 22]). On June 2, 2014, Williams so complied. (Amend. Compl. [doc. # 20]).2 Liberally

1983. [doc. 1-2].
2

Williams alleged that he had filed an EEOC complaint against the City in August 2012.
(Amend. Compl. [doc. # 20]). On October 23, 2012, Williams and another transit worker went
to the city “commission” meeting where Williams spoke and advised all present that he had filed
a complaint with the EEOC. Id. After he spoke, Mayor Mayo identified Williams as the man
who was talking about suing the city. Id. Williams then stood up and walked out. Id. Mayo,
however, signaled two men to follow Williams. Id.
As Williams was walking to his car, he heard someone yell “hey,” so he turned around
and saw a black man and a white man running toward him. Id. The black man was holding a
gun, so Williams stopped. Id. It was about 7:30 p.m. Id. The black man stood in front of
Williams, while the white man stood behind Williams. Id. The black man identified himself as
the chief of police. Id. Williams held his arms out and asked Holmes whether he was going to
arrest him. Id. Williams cautioned Holmes, however, that if he placed his hands on him there
was going to be a lawsuit. Id. Williams then asked Holmes if he knew Carol Powell (a local
attorney). Id. At that point, the men departed. Id. Williams’ co-worker, plus a friend, both
witnessed the encounter. Id.
The next day, Williams contacted the EEOC who advised him to amend his complaint to
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construing Williams’ amended pleading, the court concluded that he had alleged sufficient facts
to state a retaliation claim. (June 17, 2014, Order [doc. # 22]).
On September 19, 2014, defendants filed the instant motion for summary judgment
seeking dismissal of plaintiff’s claims in their entirety. On September 30, 2014, plaintiff filed an
unsworn opposition memorandum, styled “Motion to Dismiss Summary Judgement” [sic], in
which he essentially incorporated the allegations set forth in his complaint and amended
complaint. (Opp. Memo. [doc. # 27]). Defendants did not file a reply memorandum, and the
time to do so has lapsed. See Notice of Motion Setting [doc. # 26]. Thus, the matter is ripe.
Summary Judgment Standard
Summary judgment is appropriate when the evidence before the court shows “that there is
no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law” Fed. R. Civ. P. 56(a). A fact is “material” if proof of its existence or nonexistence would
affect the outcome of the lawsuit under applicable law in the case. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). A dispute about a material fact is “genuine” if the evidence is

include a retaliation claim. Id. Williams then began a three month campaign of complaining and
protesting in front of city hall and the Monroe transit office. Id. At the next city “commission”
meeting, Williams placed his name in the book so he could complain. Id.
On November 6, 2012, Williams purportedly received a five day suspension for
insubordination for not signing a paper after he had clocked out for that day. Id. One of
Williams’ supervisors told a coworker that it was good that he was gone. Id. On two other
occasions, another supervisor told Williams, in front of passengers, to get his God d__ed a__ on
the bus. Id.
On April 10, 2013, Williams was placed on a three day work suspension, which meant
that he was suspended, but needed to check in every morning to see if he was needed. Id.
Williams contends that it was not clearly explained to him that he needed to check in. Id.
Although he concedes that he did not check in for the first two days, he alleges that he did check
in on the last day of his suspension. Id. Thus, he maintains that he was wrongfully terminated.
Id. He concluded his amended complaint by stating that “then the gm mike told a co worker to
get in touch with me if I won’t my job back and I did not know that until later.” Id. (grammar
and spelling in original).
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such that a reasonable fact finder could render a verdict for the nonmoving party. Id.
“[A] party seeking summary judgment always bears the initial responsibility of informing
the district court of the basis for its motion, and identifying those portions of ‘the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the affidavits, if
any,’ which it believes demonstrate the absence of a genuine issue of material fact.” Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Anderson, 477 U.S. at 247). “The moving
party may meet its burden to demonstrate the absence of a genuine issue of material fact by
pointing out that the record contains no support for the non-moving party’s claim.” Stahl v.
Novartis Pharm. Corp., 283 F.3d 254, 263 (5th Cir. 2002). Thereafter, if the non-movant is
unable to identify anything in the record to support its claim, summary judgment is appropriate.
Id.
In evaluating the evidence tendered by the parties, the court must accept the evidence of
the non-movant as credible and draw all justifiable inferences in its favor. Anderson, 477 U.S. at
255. While courts will “resolve factual controversies in favor of the non-moving party,” an
actual controversy exists only “when both parties have submitted evidence of contradictory
facts.” Little v. Liquid Air. Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc). There can be no
genuine dispute as to a material fact when a party fails “to make a showing sufficient to establish
the existence of an element essential to that party’s case, and on which that party will bear the
burden of proof at trial.” Celotex Corp., 477 U.S. at 322-323. The non-moving party may not
merely rely on the allegations and conclusions contained within the pleadings; rather, the nonmovant “must go beyond the pleadings and designate specific facts in the record showing that
there is a genuine issue for trial.” Wallace v. Texas Tech Univ., 80 F.3d 1042, 1047 (5th Cir.
1996). The non-movant does not satisfy his burden merely by demonstrating some metaphysical

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doubt as to the material facts, by setting forth conclusory allegations and unsubstantiated
assertions, or by presenting but a scintilla of evidence. Little, 37 F.3d at 1075 (citations omitted).
Moreover, “summary judgment is appropriate in any case ‘where critical evidence is so
weak or tenuous on an essential fact that it could not support a judgment in favor of the
nonmovant.’” Little, supra (citation omitted) (emphasis in original). In sum, “[a]fter the nonmovant has been given the opportunity to raise a genuine factual issue, if no reasonable juror
could find for the non-movant, summary judgment will be granted.” Mississippi River Basin
Alliance v. Westphal, 230 F.3d 170, 174 (5th Cir. 2000) (citation omitted).
Relevant Facts3
I.

Failure to Promote

a)

Plaintiff’s EEOC Charge
In EEOC Charge No. 846-2012-77104, signed on “12-8-12,” Bobby Williams declared

under penalty of perjury that,
I was hired in February 2009 by the Respondent, Monroe Transit, as a Bus
Operator. From July 2012 through the present, I have been subjected to denial of
promotional opportunities. The respondent employs more than 15 persons.
No reason was given for such actions; however, only white persons have been
promoted (some to positions that were not posted as available, and/or some
without education or credentials.)
I believe that I have been discriminated against because of my race, Black, in
violation of Title VII of the Civil Rights Act of 1964, as amended.
(Charge of Discrimination; Def. MSJ Exh. 2).
The charge indicated that the discrimination occurred on July 12, 2012, but that it was a

3

The following facts are culled from the evidence submitted by defendants in support of
their motion for summary judgment. Unless otherwise noted, the evidence remains
uncontroverted.
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continuing action. Id. On April 19, 2013, the EEOC issued a right to sue notice. Id.
b)

City of Monroe’s Response to Plaintiff’s Failure to Promote Charge
The City of Monroe adduced a copy of an unsigned, undated “Position Statement,”

purporting to be its response to the EEOC regarding Williams’ initial charge. See Affidavit of
Christine Winfield, Def. MSJ, Exh. 5; Position Statement, Def. MSJ, Exh. 5-C). The City of
Monroe represented that from July 2012 through the date of the response, it had not advertised or
filled any positions at Monroe Transit. (Position Statement, Def. MSJ, Exh. 5-C). Nonetheless,
the City acknowledged that in June-July 2012, two vacancies became available for the positions
of maintenance supervisor and parts clerk. Id. It was not until October 2012, however, that the
City requested permission from the mayor to advertise and fill the position of maintenance
supervisor. Id. As of the date of the response, the mayor had yet to approve the request. Id.
Once it filled the maintenance supervisor position, the City intended to advertise and fill the
position for parts clerk. Id. There were no other job postings or promotions in the transit
department. Id.
II.

Retaliation

a)

Plaintiff’s EEOC Charge Stemming from His November 17, 2012, Suspension
In EEOC Charge No. 461-2013-00342, signed “2-7-13,” Bobby Williams declared under

penalty of perjury that
I was hired in February 2009 by the Respondent, City of Monroe Transit System,
as a Bus Driver. As of November 9, 2012, I was subjected to a disciplinary action
of a one-day suspension by Supervisor Rex Wallace. I attended a Pre-Disciplinary
Hearing on November 13, 2012; I served my suspension on Saturday the 17th. The
Respondent employs more than 200 persons.
According to Kevin Schultz, Service Development Manager, I was suspended due
to tardiness, refusal to follow a directive given by two Supervisors, and generally
poor performance under Category VIII of the Employee Work Rules.

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I believe that I have been discriminated against in retaliation for opposing
practices made unlawful under Title VII of the Civil Rights Act of 1964, as
amended.
(Charge of Discrimination, Def. MSJ, Exh. 3).
The charge indicated that the discrimination was based on race and retaliation that occurred on
November 9, 2012. Id. On March 31, 2014, the EEOC issued a right to sue notice. Id.
b)

City of Monroe’s Response to Plaintiff’s Retaliation Charge
On April 18, 2013, the City of Monroe submitted a position statement to the EEOC in

response to Charge No. 461-2013-00342. (April 18, 2013, Position Statement; Def. MSJ, Exh.
5-D). The City noted that Williams had a history of work-related problems, including at least
one incident in April 2012 that pre-dated his original EEOC complaint. Id. The City further
noted that Williams was a bus driver covered by a Collective Bargaining Agreement (“CBA”)
between the Monroe Transit System City of Monroe and Amalgamated Transit Union Local No.
1160, AFL-CIO. Id.; see also Affidavit of Tom Janway and attached partial copy of the CBA;
Def. MSJ, Exh. 1 & 1A. Also in effect during the relevant period was a document entitled
Monroe Transit Employee Work Rules and Code of Discipline (“Work Rules”). Id.; Def. MSJ,
Exh. 1 & 1B. The City explained that it was required to consistently apply its Work Rules.
(April 18, 2013, Position Statement; Def. MSJ, Exh. 5-D).
On November 6, 2012, Williams was scheduled to run a bus route beginning at 6:30 a.m.
Id. However, he clocked in at 6:37 a.m. Id. According to Article XX of the CBA, an employee
who arrives five (5) or more minutes late for work will receive a “missout,” and will not be
permitted to drive his route that day unless no other operator is available. Id.
The City issued Williams a letter explaining his “Work Rules” violation and advising him
of a pre-disciplinary hearing that was scheduled for November 8, 2012. Id.; Nov. 6, 2012, Pre7

Disciplinary Hearing Letter, Def. MSJ, Exh. 5-E. Although Williams received a copy of the
letter, he did not comply with his supervisors’ instructions to confirm receipt of the letter by
signing for it. Id., see also Supervisor Reports by Willie Mae Williams and Wilford Short, Def.
MSJ, Exh. 5E. The next day, November 7, 2012, the City notified Williams that his predisciplinary meeting would be rescheduled because he had failed to follow his supervisors’
instructions to sign for the letter. (April 18, 2013, Position Statement; Def. MSJ, Exh. 5-D; Nov.
7, 2012, Letter from Monroe Transit to Bobby Williams; Def. MSJ, Exh. 5E).
On November 9, 2012, the City issued Williams a new letter ordering him to attend a predisciplinary hearing on November 13, 2012, to address, not only his tardiness on November 6,
but also an additional charge of insubordination for refusing his supervisors’ orders to sign for
the pre-disciplinary hearing letter. (April 18, 2013, Position Statement; Def. MSJ, Exh. 5-D;
Nov. 9, 2012, Letter from Monroe Transit to Bobby Williams; Def. MSJ, Exh. 5E). The letter
further documented three prior disciplinary actions committed by Williams within the preceding
three year period, including a suspension on February 9, 2010, for an un-excused absence. Id.
On November 13, 2012, the City accorded Williams his pre-disciplinary hearing. (April
18, 2013, Position Statement; Def. MSJ, Exh. 5-D; Nov. 15, 2012, Letter from Monroe Transit to
Williams; Def. MSJ, Exh. 5E). At the hearing, however, Williams failed to present any
additional information to excuse his failure to report timely for work on November 6, 2012. Id.
Thus, the City awarded Williams a “missout,” – his fourth disciplinary violation in a three year
period – and suspended him for one day to be served on Saturday, November 17, 2012. Id.4 The

4

The City, however, did not sustain the subordination charge against Williams. Id.
Rather, it accepted Williams’ explanation that he was no longer “on the clock” at the time he was
presented with the letter, which excused his failure to sign for it. Id.
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decision letter advised Williams of his right to “grieve” the matter through the CBA grievance
process. Id. Williams, however, did not file a grievance. (April 18, 2013, Position Statement;
Def. MSJ, Exh. 5-D).
c)

Williams’ April 5, 2013, “Missout”
On April 6, 2013, Monroe Transit issued Williams a letter advising him that a pre-

disciplinary hearing would be held on April 9, 2013, because on April 5, 2013, he arrived 37
minutes late to work, thus resulting in his second “missout” within a 180 day period. (April 6,
2013, Letter, Def. MSJ, Exh. 5-F).
The City held Williams’ pre-disciplinary hearing on April 9, 2013. (April 9, 2013, Letter,
Def. MSJ, Exh. 5-F). Williams did not refute the charge. Id. Accordingly, the City assigned
him a three day working penalty scheduled for April 12, 13, and 16. Id. The letter advised
Williams to check his schedule on those days for his assignment(s). Id.
d)

Williams’ Un-excused Absences on April 12-13, 2013 and His Resulting Discharge
On April 15, 2013, the City issued Williams a letter advising him that a pre-disciplinary

hearing would be held on April 17, 2013, because Williams failed to appear for work on April
12, 2013, – one of the working suspension days. (April 15, 2013, Letter, Def. MSJ, Exh. 5-F).
The City conducted Williams’ pre-disciplinary hearing on April 17, 2013. (April 18,
2013, Letter, Def. MSJ, Exh. 5-F). At the hearing, the City received evidence that Williams
failed to report for his assignments on April 12 and 13. Id. Williams explained, in mitigation,
that he thought he was suspended for those days, and that no one had explained to him what a
working penalty meant. Id. Nonetheless, the City, via Monroe Transit General Manager, Mike
Crittenden, determined that Williams had incurred two un-excused absences, which represented a

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Category VI violation of the Work Rules. Id.5 As a result, Williams’ employment was
terminated effective April 18, 2013. Id. The letter advised Williams of his right to “grieve” the
matter through the CBA’s grievance process. Id.
Law and Analysis
I.

Title VII and § 1983
Under Title VII, it is an “unlawful employment practice for an employer . . . to fail or

refuse to hire or to discharge any individual, or otherwise to discriminate against any individual
with respect to his compensation, terms, conditions, or privileges of employment, because of
such individual's race . . .” 42 U.S.C. § 2000e-2(a)(1). In addition, “[a] plaintiff may also assert
claims of racial discrimination and retaliation against a government entity under 42 U.S.C. §
1981 and § 1983.” Davis v. Dallas Indep. Sch. Dist., 448 F. App'x 485, 490-91 (5th Cir. 2011)
(citation omitted). However, “[b]ecause a claim of racial discrimination under Section 1983 is
essentially the same as such a claim brought under Title VII,” the analysis of plaintiff’s
discrimination and retaliation claims applies with equal force to both causes of action. Id.
(citation and internal quotation marks omitted).
II.

Direct vs. Circumstantial Evidence
A plaintiff “may prove a claim of intentional discrimination or retaliation either by direct

or circumstantial evidence.” McCoy v. City of Shreveport, 492 F.3d 551, 556 (5th Cir. 2007).
“Direct evidence is evidence that, if believed, proves the fact of discriminatory animus without

5

An un-excused absence, defined as “off work without permission,” is a Category VI
violation. (Monroe Transit Work Rules, Janway Affidavit; Def. MSJ, Exh. 1-B; see also Rex
Wallace Affidavit, Def. MSJ, Exh. 4). The disciplinary remedy for a second Category VI
violation calls for discharge. Id.
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inference or presumption.” Mooney v. Aramco Services Co., 54 F.3d 1207, 1217 (5th Cir.1995).
In his pleadings and deposition, Williams highlighted a couple of comments made by two
supervisors that he considered to be offensive. “[S]tatements or documents which show on its
face that an improper criterion served as a basis-not necessarily the sole basis, but a basis-for the
adverse employment action are direct evidence of discrimination.” Jones v. Robinson Prop.
Grp., L.P., 427 F.3d 987, 993 (5th Cir. 2005). However, “for comments in the workplace to
serve as evidence of discrimination, they must be: (1) related to the protected class, (2)
proximate in time, (3) made by an individual with authority, and (4) related to the employment
decision.” Knatt v. Hosp. Serv. Dist. No. 1 of E. Baton Rouge Parish, 327 F. App'x 472, 485 (5th
Cir. 2009) (citing Jenkins v. Methodist Hosps. of Dallas, Inc., 478 F.3d 255, 261 (5th Cir.2007)).
Furthermore, comments that are vague and remote in time are insufficient to establish
discrimination. Jones v. Overnite Transp. Co., 212 F. App'x 268, 273 (5th Cir. 2006) (citations
omitted).
Williams alleges that, at some unspecified time after the city council meeting, a
supervisor, Rex Wallace, told him, in front of passengers, to get his “God d__ a__ on the bus.”
(Williams Depo., pgs. 49-50; Def. MSJ Exh. 8). On another occasion, Williams and another bus
driver were discussing a job opening at the zoo, whereupon a member of management, Chris
Phelps, passed by and said “yeah, I’m the zookeeper.” Id., pgs. 51-53.
The court notes, however, that the comment by Wallace does not implicate race at all.6
Moreover, for Phelps’s comment to be considered racially offensive, it requires the additional
inferences that Phelps was referring to himself as the zookeeper of bus drivers and that all of the

6

In fact, Wallace himself is black. See Transit Employee Listing; Def. MSJ, Exh. 5A.
11

bus drivers were black. The instant record does not support these additional inferences.7
Furthermore, there is no evidence that Phelps was involved in any of the adverse employment
decisions suffered by plaintiff. Indeed, plaintiff never even filed written complaints concerning
these comments. (Williams Depo., pgs. 52-53).
When, as here, the court must draw additional inferences in order for the evidence to be
probative of discriminatory animus, then the evidence is considered circumstantial, not direct.
Terry v. Promise Hosp. of Ascension, Inc., Civ. Action No. 13-0128, 2014 WL 4161581, at *5
(M.D. La. Aug. 19, 2014) (citation omitted). As Williams has no direct evidence to support his
claims, he must rely on circumstantial evidence.
In a case that is prosecuted on the basis of circumstantial evidence, the courts employ the
framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817
(1973). McCoy, 492 F.3d at 557. Under this framework, the plaintiff first must establish a prima
facie case of discrimination or retaliation. Id. If he makes this showing, then the burden of
production shifts to the defendant to proffer a legitimate non-discriminatory reason or nonretaliatory reason for its employment action. Id. “If the employer meets its burden of
production, the plaintiff then bears the ultimate burden of proving that the employer's proffered
reason is not true but instead is a pretext for the real discriminatory or retaliatory purpose.” Id.
Because the requirements for a prima facie case vary by claim, the court will analyze each
claim separately.

7

Not all of the bus drivers were black. See Transit Employee Listing; Def. MSJ, Exh.

5A.
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III.

Failure to Promote
To establish a prima facie case for failure to promote, plaintiff must show that “(1) he

belongs to a protected class; (2) he applied for and was qualified for a position for which
applicants were being sought; (3) he was rejected; and (4) a person outside of his protected class
was hired for the position.” Burrell v. Dr. Pepper/Seven Up Bottling Grp., Inc., 482 F.3d 408,
412 (5th Cir. 2007) (citation omitted).
Here, Williams has not adduced any evidence to establish any specific position that he
applied for, was qualified for, that he was rejected for, and/or which the City instead awarded to
someone of a different race. In short, plaintiff has failed to establish a prima facie case for failure
to promote, and thus, defendants are entitled to summary judgment as to this claim. See Davis v.
Dallas Indep. Sch. Dist., 448 F. App'x 485, 491 (5th Cir. 2011) (citing Mason v. United Air
Lines, Inc., 274 F.3d 314, 316 (5th Cir.2001) (“[S]ummary judgment is appropriate if the
nonmovant fails to establish facts supporting an essential element of his prima facie claim.”).
IV.

Retaliation
To establish a prima facie case of retaliation, plaintiff must demonstrate 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, 492 F.3d at 556-577 (citations omitted). However,
“[c]lose timing between an employee's protected activity and an adverse action against him may
provide the causal connection required to make out a prima facie case of retaliation.” Id.
(citations and internal quotation marks omitted).
Here, it is manifest that plaintiff’s one day suspension in November 2012, which occurred

13

only a few months after he filed his initial EEOC complaint and less than one month after he
mentioned his EEOC filing at a city council meeting, suffices to establish a prima facie case of
retaliation. See LeMaire v. Louisiana Dep't of Transp. & Dev., 480 F.3d 383, 390 (5th Cir. 2007)
(two day suspension without pay constitutes an adverse employment action). Similarly, his
discharge from employment in April 2013 – only two months after he filed his EEOC retaliation
charge – also suffices to support a prima facie case of retaliation.
However, in response to Williams’ prima facie case, the City adduced uncontroverted
evidence that it suspended him for a single day in November 2012 because he reported late to
work on November 6, 2012, and had prior rules violations. Williams does not controvert this
legitimate, non-retaliatory explanation for his suspension, nor did he appeal the determination
through the CBA grievance process. See LeMaire v. La. Dept. of Trans. and Develop., 480 F.3d
383, 391 (5th Cir. 2007) (job performance constitutes a legitimate, non-retaliatory reason for
discharge).8
Similarly, the City adduced uncontroverted evidence that it assessed Williams with a
three day “working penalty” in April 2013 because he reported 37 minutes late for work which
constituted his second “missout” within a 180 day period. Although Williams had the benefit of
a pre-disciplinary hearing, there is no evidence that he contested the charge then or now. As a
result he received a three day “working penalty” scheduled for April 12, 13, and 16, 2013, which,
according to the letter signed-for by Williams, advised him that “[o]n these days, please check

8

Plaintiff does and did challenge the additional charge of insubordination for failure to
sign the pre-hearing notification letter. He argued that the charge was unwarranted because he
was not on the clock at the time. The City, however, dropped that charge, and it did not figure in
his one day suspension.
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the schedule for your assignment.” (emphasis in original).
Williams, however, failed to report for work on April 12 and 13 – two of the three
“working penalty” days. These additional, un-excused absences compelled the City to discharge
Williams because they constituted a Category VI (not VII) violation of the Employee Work
Rules. Plaintiff did not then, and does not now contest that he missed those days. Instead, he
argued, inter alia, that he did not realize that he had to report to work on those days. To survive
summary judgment, however, plaintiff must do more than simply dispute the underlying facts and
argue that his employer made the wrong decision. See LeMaire, supra. Moreover, there is no
evidence that plaintiff appealed his discharge through the available CBA grievance process. In
addition, plaintiff has not adduced any evidence that, under similar circumstances, the City
treated non-black or non-complaining bus drivers more favorably than it treated him. See
McCoy, supra.
V.

Hostile Work Environment/Harassment
To establish a hostile work environment claim under Title VII, plaintiff must demonstrate

that he
(1) belongs to a protected group; (2) was subjected to unwelcome harassment; (3)
the harassment complained of was based on race; (4) the harassment complained
of affected a term, condition, or privilege of employment; (5) the employer knew
or should have known of the harassment in question and failed to take prompt
remedial action.
Hernandez v. Yellow Transp., Inc., 670 F.3d 644, 651 52 (5th Cir. 2012) (citations omitted).
In assessing whether a work environment is actionably hostile, the court must consider all of the
pertinent 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.” Id. (citations and quotation
15

marks omitted). Furthermore, the work environment must be “both objectively and subjectively
offensive, one that a reasonable person would find hostile or abusive, and one that the victim in
fact did perceive to be so.” Id.
Here, the evidence before the court supports but three instances of alleged harassment:
the two comments made by two supervisors and the brief encounter between plaintiff and the
chief of police. However, there is no evidence that the confrontation between the chief of police
and plaintiff was related to plaintiff’s race.9 In addition, there is no evidence that the encounter
affected any term, condition or privilege of plaintiff’s employment.
Along these same lines, there is no evidence that the comments made by two different
supervisors created a hostile work environment. There is no evidence that Rex Wallace’s
profanity-laced order commanding Williams to get on his bus implicated race or that it affected a
term, condition, or privilege of his employment. Furthermore, there is no evidence that plaintiff
alerted the City about this offensive order, or that the City should have known of it. The same
rationale applies to Phelps’s alleged zookeeper comment.
In sum, plaintiff has not adduced facts to support all of the elements of his hostile work
environment/harassment claim as required to withstand summary judgment.
VI.

First Amendment Retaliation
To establish a First Amendment/free speech retaliation claim under § 1983, a public

employee must establish that
(1) [ ]he suffered an adverse employment action; (2) h[is] speech involved a

9

For purposes of this motion, the court accepts Williams’ account of the encounter, as
detailed in his deposition, which is consistent with his recitation set forth in his amended
complaint. See Williams Depo., pgs. 39-41; fn 2, supra.
16

matter of public concern; (3) h[is] interest in commenting on matters of public
concern outweighed the defendant's interest in promoting workplace efficiency;
and (4) h[is] speech was a substantial or motivating factor in the defendant's
adverse employment action.
Burnside v. Kaelin, 773 F.3d 624, 626 (5th Cir. 2014) (citations omitted).
Speech involves a matter of public concern only when it can be “fairly considered as relating to
any matter of political, social, or other concern to the community.” Graziosi v. City of Greenville
Miss.,

F.3d

, 2015 WL 148998, at *5 (5th Cir. Jan. 9, 2015) (citation omitted).

In this case, Williams advised the city council that he had filed an EEOC charge against
Monroe Transit for denial of promotional opportunities. By all accounts, however, this speech
addressed an employee-employer dispute which militates against a finding that it touched upon a
matter of public concern. Graziosi, supra. Furthermore, Williams’ First Amendment retaliation
claim succumbs to summary judgment for the same reasons that his Title VII retaliation claim
fell short, i.e. uncontroverted, legitimate, non-retaliatory reasons for the adverse job actions. See
McCoy, supra.
VII.

Due Process
To the extent that Williams intended to assert a substantive due process claim under the

Fourteenth Amendment as a result of his discharge, he must show that “(1) he had a property
interest/right in his employment and (2) his termination was arbitrary or capricious.” Bolton v.
City of Dallas, Tex., 472 F.3d 261, 263 (5th Cir. 2006) (citations omitted). However, “substantive
due process requires only that public officials exercise professional judgment, in a nonarbitrary
and noncapricious manner, when depriving an individual of a protected property interest.” Lewis
v. Univ. of Texas Med. Branch at Galveston, 665 F.3d 625, 630-31 (5th Cir. 2011) (citations
omitted). Even if “reasonable minds could disagree on the propriety of [the plaintiff]'s

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termination” that does not suffice to overcome a public official's qualified immunity defense
against a substantive due process claim. Id. Rather, the plaintiff must demonstrate that the
decision was “made without a rational connection between the known facts and the decision or
between the found facts and the evidence.” Id. Stated differently, plaintiff has the burden to
show that “the abuse of power by the state official shocks the conscience.” Id.
Assuming for purposes of this motion that Williams enjoyed a property interest in his
employment, no reasonable juror could conclude that the City’s decision to terminate his
employment was arbitrary or capricious. The evidence remains uncontroverted that Williams
was discharged for Work Rules violations, after a hearing. Furthermore, the record is devoid of
any evidence that Williams utilized the grievance process to challenge his adverse job actions,
which precludes him from protesting that he was denied due process. Browning v. City of
Odessa, Tex., 990 F.2d 842, 844 -845 (5th Cir. 1993) (citations omitted)
To the extent that Williams contends that he was denied procedural due process, the
court notes that he received advance notice of his Work Rules violations and was accorded the
opportunity to respond to the charges before discharge. Due process mandates nothing further.
See Williams v. Texas Tech. Univ. Health Sciences Ctr., 6 F.3d 290, 293 (5th Cir. 1993).
VIII. Individual Defendants
Under Title VII, “relief . . . is available only against an employer, not an individual
supervisor or fellow employee.” Knox v. City of Monroe, 551 F. Supp. 2d 504, 507 (W.D. La.
2008) (citations omitted). Furthermore, the Fifth Circuit has held that a plaintiff cannot sue both
his employer or a corporation and an agent or officer thereof, acting in his official capacity.
Smith v. Amedisys Inc., 298 F.3d 434, 449 (5th Cir. 2002); Indest v. Freeman Decorating, Inc.,

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164 F.3d 258, 262 (5th Cir.1999); see also Ackel v. National Communications, Inc., 339 F.3d 376,
382 n. 1 (5th Cir.2003) (individuals not liable under Title VII in either their individual or official
capacities). Accordingly, Williams does not have a viable Title VII claim against the mayor or
the chief of police.
In addition, plaintiff cannot sue the individual defendants under § 1983 for retaliation
because the Equal Protection Clause does not support retaliation claims. Aucoin v. Kennedy, 355
F. Supp. 2d 830, 843 (E.D. La. 2004) (citation omitted); Gates v. City of Dallas, No. Civ. Action
No. 96-2198, 1998 WL 401602, at *4 (N.D. Tex. July 15, 1998) (citations omitted).
Conclusion
For the foregoing reasons, the court finds that there is no genuine dispute as to any
material fact, and that movants are entitled to judgment as a matter of law. Fed.R.Civ.P. 56.
Accordingly,
IT IS ORDERED that the motion for summary judgment [doc. # 25] filed by defendants
City of Monroe – Monroe Transit, Jamie Mayo, and Quentin Holmes is hereby GRANTED.
Judgment shall issue dismissing with prejudice plaintiff’s claims, in their entirety, at plaintiff’s
cost.
In Chambers, at Monroe, Louisiana, this 29th day of January 2015.

__________________________________
KAREN L. HAYES
UNITED STATES MAGISTRATE JUDGE

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