Larry v. Texas Department of Aging and Disability Services

Filing 58

REPORT AND RECOMMENDATIONS re 35 MOTION for Summary Judgment filed by Texas Department of Aging and Disability Services, 34 MOTION for Partial Summary Judgment Plaintiff's Motion and Brief for Partial Summary Judgment filed by Charley Larry Within fourteen (14) days after service of the magistrate judges report, any party may serve and file written objections to the findings and recommendations of the magistrate judge. 28U.S.C.A. § 636(b)(1)(c). Signed by Magistrate Judge Don D. Bush on 12/19/12. (cm, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION
CHARLEY LARRY
Plaintiff,
VS.
TEXAS DEPARTMENT OF AGING
AND DISABILITY SERVICES
Defendant.

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Case No. 4:11CV374

REPORT AND RECOMMENDATIONS
OF UNITED STATES MAGISTRATE JUDGE
Now before the Court are Plaintiff’s Motion and Brief for Partial Summary Judgment (Dkt.
34) and Defendant’s Motion for Summary Judgment (Dkt. 35). As set forth below, the Court finds
that Plaintiff’s motion should be DENIED, that Defendant’s motion should be GRANTED, and that
summary judgment should be granted for Defendant as to all claims here.
FACTUAL BACKGROUND
Charley Larry filed this suit against the Texas Department of Aging and Disability Services
(“DADS”) under Title VII alleging gender and retaliatory discrimination. Larry was a former
employee of the Denton State School. He was terminated for failure to resolve the outstanding
criminal charges against him which he self reported. The one that was the basis of his termination
was a criminal trespass charge. Larry was terminated on March 25, 2009. His suit does not
challenge his termination, but rather the failure of DADS to hire him for various positions at the

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school after his termination. He has filed two previous lawsuits, several previous EEOC complaints
and applied for at least 33 positions.
According to Plaintiff, Defendant maintains a policy of excluding male employees and
applicants for employment in certain jobs which are open to females. Allegedly, Plaintiff sought
numerous such positions and was denied them solely because of his sex, male, in violation of the
1965 Civil Rights Act as amended.
Plaintiff filed suit in this Court on or about January 10, 2011. In his Original Complaint,
Plaintiff alleges Defendant violated Title VII of the Civil Rights Act of 1964, and 42 U.S.C.A. 2000e
(Unlawful Employment Practices) and brings claims of gender discrimination and retaliation. Both
Plaintiff and Defendant have filed motions for summary judgment.
SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate when, viewing the evidence and all justifiable inferences
in the light most favorable to the non-moving party, 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); Hunt v. Cromartie,
526 U.S. 541, 549, 119 S. Ct. 1545, 143 L. Ed.2d 731 (1999). The appropriate inquiry is “whether
the evidence presents a sufficient disagreement to require submission to a jury or whether it is so
one-sided that one party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 251-52, 106 S. Ct. 2505, 91 L. Ed.2d 202 (1986).

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The party moving for summary judgment has the initial burden to prove there are no genuine
issues of material fact for trial. Provident Life & Accident Ins. Co. v. Goel, 274 F.3d 984, 991 (5th
Cir. 2001). In sustaining this burden, the movant must identify those portions of 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, 325, 106 S. Ct. 2548, 2553, 91 L. Ed.2d 265 (1986). The moving party,
however, “need not negate the elements of the nonmovant’s case.” Little v. Liquid Air Corp., 37
F.3d 1069, 1075 (5th Cir. 1994) (en banc). The movant’s burden is only to point out the absence of
evidence supporting the nonmoving party’s case. Stults v. Conoco, Inc., 76 F.3d 651, 655 (5th Cir.
1996).
In response, the nonmovant’s motion “may not rest upon mere allegations contained in the
pleadings, but must set forth and support by summary judgment evidence specific facts showing the
existence of a genuine issue for trial.” Ragas v. Tennessee Gas Pipeline Co., 136 F.3d 455, 458 (5th
Cir. 1998) (citing Anderson, 477 U.S. at 255-57, 106 S. Ct. at 2513-14). Once the moving party
makes a properly supported motion for summary judgment, the nonmoving party must look beyond
the pleadings and designate specific facts in the record to show that there is a genuine issue for trial.
Stults, 76 F.3d at 655. The citations to evidence must be specific, as the district court is not required
to “scour the record” to determine whether the evidence raises a genuine issue of material fact. E.D.
TEX . LOCAL R. CV-56(d). Neither “conclusory allegations” nor “unsubstantiated assertions” will
satisfy the nonmovant’s burden. Stults, 76 F.3d at 655.

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ANALYSIS
The Court first addresses Plaintiff’s motion for partial summary judgment. Plaintiff has
attached to that motion a copy of the Oral Deposition of Nancy Condon and the affidavit of Chris
Adams. See Dkt. 34-1 – 34-2.
In response, Defendant offers the following:
Exhibit A: Affidavit of Nancy Condon (6/15/12)
Exhibit F: Plaintiff’s Supplemental Answers and Objections to First Set of Interrogatories
Exhibit G: Plaintiff’s Job Applications (produced by Plaintiff)
Exhibit K: Direct Support Professional I/Mental Retardation Assistant I - Job Descrip.
Exhibit L: Direct Support Professional II/Mental Retardation Assistant II - Job Descrip.
Exhibit M: Direct Support Professional III/Mental Retardation Assistant III - Job Descrip.
Exhibit N: Direct Support Professional IV/Mental Retardation Assistant IV - Job Descrip.
Exhibit P: MRA III (job posting 144593)
Exhibit Q: MRA III (job posting 151335)
Exhibit T: MRA IV (job posting 175385)
Exhibit U: Affidavit of Jerome Young
Exhibit Y: Hiring Center documents, Richmond State Supported Living Center
Exhibit AA: Affidavit of Marianne Reat
Exhibit BB: Affidavit of Nancy Condon (6/29/12)
Exhibit CC: Affidavit of Debbie Reynolds

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See Dkt. 39-1 – 39-15.
Plaintiff says he is a male. However, he claims that he has applied for female attendant
positions only to be denied because of his gender. According to his affidavit, he interviewed for
eight positions. He was told in his interview that two of the positions were for female attendants at
a female residential center and that he would not be considered.
Plaintiff’s Motion for Partial Summary Judgment seeks a finding that the practice of limiting
the position of a Direct Support Professional (“DSP”) providing personal care to female residents
exists and is in violation of Title VII. However, this manner of proof is not available to an individual
plaintiff and is almost exclusively reserved for class action plaintiffs or in suits instituted by the
government in certain circumstances. See Celestine v. Petroleos de Venezuella SA, 266 F.3d 343,
355 (5th Cir. 2001). Therefore, to the extent that Plaintiff’s motion seeks to do an end run around
the traditional McDonnell Douglas burden shifting analysis, such (Dkt. 34) should be DENIED.
The Court next turns to Defendant’s Motion for Summary Judgment, which argues that
Plaintiff has no evidence to establish that Defendant’s non-selection of Plaintiff was motivated by
gender discrimination or retaliation (see Dkt. 35). Defendant has offered the following summary
judgment evidence to demonstrate that there is no genuine issue of material fact as to Plaintiff’s
claims here:
Exhibit A: Affidavit of Nancy Condon
Exhibit B: Plaintiff’s criminal offense self-reports
Exhibit C: Letter from Dora Tillis to Plaintiff
Exhibit D: Letters from Dora Tillis to Plaintiff

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Exhibit E: Plaintiff’s EEOC charges of discrimination (11/12/08, 5/20/29, 6/5/29, 10/26/10)
Exhibit F: Plaintiff’s Supplemental Answers & Objections to First Set of Interrogatories
Exhibit G: Plaintiff’s Job Applications (produced by Plaintiff)
Exhibit H: Plaintiff’s deposition testimony (selected excerpts) (64:8-70:16, 126:4-10,
Exhibit I: Nancy Condon deposition testimony (selected excerpts) (19:12-20:1, 26:22-25)
Exhibit J: Defendant’s Second Supplemental Objections & Responses to First Interrogatories
Exhibit K: Direct Support Professional I/Mental Retardation Assistant I - Job Description
Exhibit L: Direct Support Professional II/Mental Retardation Assistant II - Job Description
Exhibit M: Direct Support Professional III/Mental Retardation Assistant III - Job Description
Exhibit N: Direct Support Professional IV/Mental Retardation Assistant IV - Job Description
Exhibit O: MRA III (job posting 142570)
Exhibit P: MRA III (job posting 144593)
Exhibit Q: MRA III (job posting 151335)
Exhibit R: MRA II (job posting 152016)
Exhibit S: MRA III (job posting 152140)
Exhibit T: MRA IV (job posting 175385)
Exhibit U: Affidavit of Jerome Young
Exhibit V: Maintenance Technician II
Exhibit W: Resident Specialist I
Exhibit X: Administrative Assistant IV
Exhibit Y: Hiring Center documents, Richmond State Supported Living Center

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Exhibit Z: Job application and Selection Summary for Melinda Alvarez
Exhibit AA: Affidavit of Marianne Reat

See Dkt. 35-1 – 35-27.
Plaintiff has submitted the following pieces of summary judgment evidence:
Exhibit A: The declaration of Charlie (sic) Larry
Exhibit B: Excerpts From The Deposition Of Nancy Condon
Exhibit C: Discovery Order Dated June 7, 2012.
Exhibit DD: Defendant’s First Supp. Objections & Responses to First Interrogatories
See Dkts. 36 - 38; 40.
As set forth below, the Court has reviewed the summary judgment evidence and finds that
Plaintiff has failed to create a genuine issue of material fact as to any of his allegations herein.
In order to overcome a motion for summary judgment on a Title VII discrimination claim, the
plaintiff must first establish, by a preponderance of the evidence, a prima facie case of
discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–04, 93 S. Ct. 1817,
1824–26, 36 L. Ed.2d 668 (1973); Haynes v. Pennzoil Co., 207 F.3d 296, 300 (5th Cir. 2000);
Shackelford v. Deloitte & Touche, 190 F.3d 398, 404 (5th Cir. 1999). A prima facie case of
discrimination in a failure to promote or train case consists of four elements: (1) the employee is a
member of the protected class; (2) he sought and was qualified for the position; (3) he was rejected
for the position; and (4) the employer continued to seek applicants with the plaintiff’s qualifications
or was filled by someone outside of Plaintiff’s protected class. Haynes, 207 F.3d at 300. The prima
facie case, once established, raises an inference of intentional discrimination, and the burden of

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production shifts to the defendant to articulate a legitimate, nondiscriminatory reason for its actions.
Id. If the defendant satisfies this burden, the plaintiff must prove that the proffered reasons are
pretextual. Id. Once a Title VII claim reaches this pretext stage, “the only question on summary
judgment is whether there is a conflict in substantial evidence to create a jury question regarding
discrimination.” Id.
Each of Plaintiff’s prolific job applications are the same. His only experience listed is as a
Funeral Dir./Embomer(sic) or Mental Retardation Asst III at the Denton State Supported Living
Center. He gives no dates as to his employment at the Denton facility. He describes his experience:
“I was the home team leader. I was reponsidle (sic) for porvision ( sic) of
direct services for individuals with developmental disabilities and
supervision of staff. Emphasis is focused on assisting individual (sic) to
attain their personal golds (sic), providing prescribed training and health
services and enhancing independence. Performs housekeeping duties to
assist to maintain a clean and safe sanitary environment.
Specific reason for leaving: We can talk about it later/thank you very much.”
Dkt. 35-7 at 4.
According to the affidavit of Nancy Condon, the hiring decision for a Direct Support
Professional is “gender neutral.” Dkt. 35-1. In other words, only the best qualified candidate is hired
for the position. Once hired, it is the practice of the Denton facility to place a hired and qualified
candidate who is a female in a female facility. Id. If a female resident specifically requests a male
attendant, the facility will attempt to accommodate that request. Id.
Plaintiff’s summary judgment evidence fails to show that he met the qualifications of the jobs
for which he applied and was screened but not interviewed. As noted by DADS, Plaintiff failed to

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indicate how long he had worked as a Mental Retardation Assistant. All DSP jobs required a
minimum of at least six months or twelve months experience. Plaintiff did not demonstrate that he
met the objective employment criteria established by the job posting. Therefore, he fails to meet the
presumptive hurdle. See Lindsey v. Prive Corp., 987 F.2d 324, 326-27 (5th Cir. 1993). Since
Plaintiff did not take the time to fully fill out the requirements for the job, DADS had no
responsibility to “fill in the blanks” in his deficient application.
Plaintiff has failed to create a genuine issue of material fact that he was qualified for the
positions based on the summary judgment evidence before the Court. His sworn assertion that he
was qualified, see Dkt. 36-1, is not enough. As the Fifth Circuit has recently noted, “[a] party’s selfserving and unsupported statement in an affidavit will not defeat summary judgment where the
evidence in the record is to the contrary.” Chambers v. Sears Roebuck & Co., 428 Fed. Appx. 400,
408, 2011 WL 2392359, 5 (5th Cir. 2011) (citing In re Hinsley, 201 F.3d 638, 643 (5th Cir. 2000)).
Plaintiff’s prima facie case of discrimination fails.
Moreover, even if Plaintiff could make out a prima facie case, DADS has demonstrated a
legitimate non-discriminatory reason for his rejection. There were simply other better qualified
candidates. As stated by Ms. Condon, the practice of the Denton Facility is to hire the best qualified
candidate for the job. See Dkt. 35-1. According to the affidavit of Jerome Young, a number of
males were selected for the Mental Retardation Assistant III (“MRA”) perpetual posting position.
See Dkt. 35-21. A review of some of the job posting notes that several females and males, including
Plaintiff, applied for positions and were screened but not selected.

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DADS has also pointed to other positions for which Plaintiff applied but was not selected.
For example, a Maintenance Tech II must demonstrate experience in drywall and painting. See Dkt.
35-22. Nothing in Plaintiff’s application discloses such experience. For the Richmond State School,
Plaintiff submitted the same incomplete applications and failed to include telephone numbers for his
supervisors. See Dkt. 35-7. Further, any claim to pretext would fail in that Plaintiff has failed to
even remotely demonstrate that he was clearly better qualified for any one position. E.E.O.C. v. La.
Office of Cmty. Servs., 47 F.3d 1438, 1445 (5th Cir. 1995).
In the end analysis, as to the majority of DSP and MRA positions, Plaintiff failed to show
any discrimination. For all available jobs there was no limitation as to what gender could apply and
then be placed accordingly. Men as well as women were hired. Indeed, a review of the job postings
included in the record universally indicates that if the applicant is a male between the ages of 18-25,
he must register for the Selective Service. This bolsters DADS’s argument that the postings are
gender neutral. The fact that women hired were later placed in a female facility is of no consequence
to Plaintiff’s case in that he was not hired in the first place.
Further, nothing in Plaintiff’s application gives even the slightest suggestion that he is a male
seeking a position in a female facility. He is simply applying for a job, and, as evidenced by his
application, it was a sub-par effort, at best. As evidenced by the record before the Court, Plaintiff’s
applications were incomplete and fraught with spelling and grammatical errors.
Plaintiff points only to two jobs where he says he was denied employment as a male. This
is direct evidence of his contention that gender was a screening factor. However, Plaintiff fails to

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identify the particular job postings. He also fails to identify the individual who was hired, and even
whether or not the position was filled. The Court finds that Plaintiff’s allegations as to his
qualifications are merely conclusory and do not raise an issue of genuine fact. See Clark v.
America’s Favorite Chicken Co., 110 F.3d 295, 297 (5th Cir. 1997). DADS objects to Plaintiff’s
conclusory statements, and such objection is sustained. Plaintiff fails to disclose what position he
refers to, how he is qualified, and who told him that the job was reserved for a female. More
importantly, many of the jobs he applied for pre-date the actionable time for which he could bring
an action – December 30, 2009. It is Plaintiff’s burden to put on sufficient proof to satisfy his
complaint that he was discriminated against by DADS and he has failed to do so. Thus, his gender
discrimination claim does not survive summary judgment.
Plaintiff’s only remaining claim is his claim that Defendant refused to hire him in retaliation
of his filing EEOC charges and suits. To establish a prima facie case of retaliation, Plaintiff must
show that: (1) he participated in an activity protected by Title VII; (2) DADS took an adverse
employment action against him; and (3) a causal connection exists between the protected activity and
the materially adverse action. See McCoy v. City of Shreveport, 492 F.3d 551, 557 (5th Cir. 2007).
“If the plaintiff makes a prima facie showing, the burden then shifts to the employer to articulate a
legitimate ... non-retaliatory reason for its employment action.” Id. If the employer meets this
burden of production, the plaintiff then bears the burden of proving that the employer's reason is a
pretext for the actual retaliatory reason. See id.

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DADS does not dispute that Plaintiff’s filing of the EEOC claims and lawsuits are protected
activities. DADS also agrees that an adverse action (or inaction) occurred, i.e. Larry was not hired.
It is the third prong which DADS insists that Plaintiff cannot meet, i.e. that of a causal link between
the protected activity and the adverse employment action taken as a result of the retaliation.
Here, the Court focuses on the motivations of the final decision maker. Gee v. Principi, 289
F.3d 342, 346 (5th Cir. 2002). A “causal link” is established when the evidence demonstrates that
the decision-maker’s action was based, at least partially, on knowledge of the employee’s protected
activity. Medina v. Ramsey Steel Co., 238 F.3d 674 (5th Cir. 2001). This can be shown by
circumstantial evidence as with discriminatory conduct. See Smith v. Xerox Corp., 602 F.3d 320 (5th
Cir. 2010). There is simply no evidence demonstrated that Plaintiff was not hired because of his
filings. Therefore, DADS should have summary judgment on Plaintiff’s claims of retaliation as well.
RECOMMENDATION
For the reasons set forth above, the Court finds that Plaintiff’s Motion and Brief for Partial
Summary Judgment (Dkt. 34) should be DENIED, that Defendant’s Motion for Summary Judgment
(Dkt. 35) should be GRANTED, and that summary judgment should be granted for Defendant as to
all claims here.
Within fourteen (14) days after service of the magistrate judge’s report, any party may serve
and file written objections to the findings and recommendations of the magistrate judge. 28
U.S.C.A. § 636(b)(1)(c).

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Failure to file written objections to the proposed findings and recommendations contained
in this report within fourteen days after service shall bar an aggrieved party from de novo review by
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the district court of the proposed findings and recommendations and from appellate review of factual
findings accepted or adopted by the district court except on grounds of plain error or manifest
injustice. Thomas v. Arn, 474 U.S. 140, 148 (1985); Rodriguez v. Bowen, 857 F.2d 275, 276-77 (5th
Cir. 1988).
SIGNED this 19th day of December, 2012.
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DON D. BUSH
UNITED STATES MAGISTRATE JUDGE

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