Fried v. Texas Department of Criminal Justice
MEMORANDUM OPINION AND ORDER. IT IS ORDERED that Defendant's Motion for Summary Judgment (ECF 67 ) is GRANTED. The complaint is DISMISSED with prejudice. Any motion not previously ruled on is DENIED. Signed by Magistrate Judge K. Nicole Mitchell on 10/31/2017. (rlf)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TEXAS DEPARTMENT OF
CASE NO. 6:16-CV-1092-KNM
MEMORANDUM OPINION AND ORDER
Before the Court is Defendant’s Motion for Summary Judgment (ECF 67). Plaintiff filed
a response (ECF 71) on September 26, 2017. Having considered the motion and response, the
motion is GRANTED.
Plaintiff, proceeding pro se, filed this lawsuit alleging employment discrimination in
violation of Title VII of the Civil Rights Act of 1964. While employed by the Texas Department
of Criminal Justice (“TDCJ”), Plaintiff alleges that she was subjected to race, color, sex, and
religious discrimination. Plaintiff alleges discrimination resulting in the termination of her
employment and a failure to promote her. Plaintiff alleges that she was subjected to unjustified
reprimands and that she was retaliated against when she reported the unjustified reprimands.
Plaintiff states that she practices the Orthodox Jewish faith. Although she does not state it
directly, she appears to assert that she was required to work on the Sabbath contrary to her faith.
Plaintiff states that she was told that working on the Sabbath would eliminate the hostile work
environment. Documentation submitted with Plaintiff’s Amended Complaint (ECF 4) indicates
that Plaintiff’s employment was terminated on July 13, 2016 for unexcused absenteeism. Plaintiff
submits that she was not permitted to transfer to a different prison unit that would allow her to
observe the Sabbath. Plaintiff filed a notice on January 30, 2017 stating that she applied and
received an interview for a TDCJ mail room position. Plaintiff submits that this shows that TDCJ
would consider re-hiring her.
In addition to TDCJ, Plaintiff originally brought this Title VII case against several
individual employees of TDCJ. The individual defendants filed a partial motion to dismiss
asserting that they were entitled to Eleventh Amendment immunity from any claim against them
in their official capacities and that the claims against them in their individual capacities should be
dismissed because officers of an employer cannot be liable for the same act under Title VII as their
employer. The Court granted the partial motion to dismiss on April 25, 2017 and dismissed the
claims against the individual defendants.
The remaining defendant, TDCJ, then filed the present motion for summary judgment.
TDCJ argues that Plaintiff has not exhausted her administrative remedies, does not state a prima
facie case for retaliation and has no evidence that she was discriminated against due to her color,
sex, or religion. When Plaintiff did not respond to the motion for summary judgment, the Court
entered a show cause order for Plaintiff to state why the motion should not be treated as unopposed.
Plaintiff then filed a response (ECF 71) asserting that TDCJ does not have admissible evidence
that her “wrongful termination was constructive” and that she is appealing the ruling on the
dismissal of the individual defendants. 1
The Court may only grant a motion for summary judgment when there is no genuine
dispute of material fact and the moving party is entitled to summary judgment as a matter of law.
FED. R. CIV. P. 56(a). A genuine dispute as to a material fact exists “if the evidence is such that a
See Plaintiff’s Motion Opposing Summary Judgment and Proposed Judgment, ECF 71, at *3.
reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A “material fact” is one that might
affect the outcome of the suit under governing law. Id. The 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, 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). 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 showing that there is a genuine issue for trial. Id. All facts and
inferences are viewed “in the light most favorable to the nonmoving party.” McFaul v. Valenzuela,
684 F.3d 564, 571 (5th Cir. 2012). “Summary judgment may not be thwarted by conclusional
allegations, unsupported assertions, or presentation of only a scintilla of evidence.” Id.
TDCJ asserts that Plaintiff has not exhausted her administrative remedies with respect to
any claim for race, sex or religious discrimination.
Plaintiff filed this lawsuit seeking relief
pursuant to Title VII. As a prerequisite to filing a lawsuit pursuant to Title VII, a plaintiff must
first file a charge of discrimination with the EEOC within the time limits prescribed by 42 U.S.C.
§ 2000e-5(e). Alexander v. Gardner-Denver Co., 415 U.S. 36, 47, 94 S.Ct. 1011, 1019 (1974);
United Air Lines, Inc. v. Evans, 431 U.S. 553, 97 S.Ct. 1885, 1886 (1977); Gonzalez v. Firestone
Tire & Rubber Co., 610 F.2d 241, 248 (5th Cir. 1980). A plaintiff seeking relief pursuant to Title
VII must first exhaust her administrative remedies, meaning that she must file a timely charge with
the EEOC and receive a statutory notice of right to sue. Taylor v. Books-a-Million, Inc., 296 F.3d
376, 378–79 (5th Cir. 2002).
Here, TDCJ submitted a copy of Plaintiff’s EEOC charge of discrimination and the notice
of right to sue letter with the motion for summary judgment. The charge of discrimination form,
dated August 26, 2014, asserts only a claim of retaliation:
See Defendant’s Motion for Summary Judgment, ECF 67-1, at *17.
Plaintiff’s EEOC charge of discrimination alleges retaliation occurring from June 1, 2014
to July 30, 2014. As shown above, Plaintiff alleged that she was retaliated against for filing an
internal complaint in May or June 2014. There is no evidence that Plaintiff submitted a charge of
discrimination to the EEOC and received a statutory notice of right to sue on her claims for race,
gender and religious discrimination or for any activities occurring after July 30, 2014.
Plaintiff’s response to the motion for summary judgment does not dispute that she failed
to file an EEOC charge of discrimination alleging race, gender or religious discrimination.
Plaintiff has only exhausted her claim of retaliation occurring between June 1, 2014 to July 30,
2014. As a result, TDCJ is entitled to judgment as a matter of law on Plaintiff’s claims for race,
gender and religious discrimination and on any Title VII claim based on events occurring after
July 30, 2014.
Dismissal of Plaintiff’s Title VII claims for race, gender and religious
discrimination and for any retaliation or other discrimination that allegedly occurred in July 2016
should be with prejudice because Plaintiff’s time for filing an EEOC charge on these claims has
Moreover, Plaintiff did not timely file this lawsuit on her retaliation claim that is the subject
of her EEOC charge of discrimination. A plaintiff has ninety days after receiving a right-to-sue
letter to file suit. Taylor, 296 F.3d at 378–78; 42 U.S.C. § 2000e-5(f)(1). The ninety-day limitation
period is strictly construed. Id. When the date a right-to-sue letter is received is unknown or
disputed, federal courts have presumed various dates of receipt ranging from three to seven days
after mailing. Id. Here, the right-to-sue letter for Plaintiff’s claim of retaliation is dated December
31, 2014. The date Plaintiff received the notice is unknown, but even if the Court applies the more
generous seven-day presumption of receipt date, it is presumed that Plaintiff received the notice
no later than January 7, 2015. Plaintiff did not file this lawsuit until August 1, 2016, which is
approximately 572 days after receipt of the notice of the right to sue. Plaintiff did not file her
retaliation claim within the statutory ninety-day time for filing suit and her retaliation claim should
A Title VII plaintiff must file a charge of discrimination with the EEOC no more than 300 days after learning of an
adverse employment decision. Messer v. Meno, 130 F.3d 130, 134 (5th Cir. 1997). In the Amended Complaint,
Plaintiff states that the discrimination occurred in July 2016. See Amended Complaint, ECF 4, at *2.
The undisputed summary judgment evidence establishes that the only Title VII claim for
which Plaintiff has exhausted her administrative remedies is a claim for retaliation occurring
between June 1, 2014 and July 30, 2014. That retaliation claim, however, was not timely filed in
federal court and is time-barred. As a result, the Court does not reach the issue of whether Plaintiff
stated a prima facie case of retaliation or a claim for discrimination based on race, gender or
religion. There are no genuine issues of material fact and TDCJ is entitled to judgment as a matter
of law. It is therefore
ORDERED that Defendant’s Motion for Summary Judgment (ECF 67) is GRANTED.
The complaint is DISMISSED with prejudice. Any motion not previously ruled on is DENIED.
So ORDERED and SIGNED this 31st day of October, 2017.
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