Tesso v. Westwood College et al
Filing
46
MEMORANDUM OPINION AND ORDER. The court grants in part Westwood College's 27 1/25/2012 motion for summary judgment as to Tesso's discrimination and retaliation claims and raises sua sponte that Westwood College is entitled to summary jud gment as to the balance of the grounds of Tesso's discrimination and retaliation claims. The court grants the motion as to Tesso's claims against Alta. Tesso may respond to the grounds the court raises sua sponte within 21 days of the date this memorandum opinion and order is filed. (Ordered by Chief Judge Sidney A Fitzwater on 8/8/2012) (Chief Judge Sidney A Fitzwater)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
GIZACHEW T. TESSO,
Plaintiff,
VS.
WESTWOOD COLLEGE, et al.,
Defendants.
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§ Civil Action No. 3:11-CV-0246-D
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MEMORANDUM OPINION
AND ORDER
In this action by plaintiff Gizachew T. Tesso (“Tesso”) under Title VII of the Civil
Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq., alleging claims of racial
discrimination, national origin discrimination, and retaliation against his former employer,
defendant Westwood College, and its parent company, defendant Alta Colleges, Inc.
(“Alta”), defendants move for summary judgment. For the reasons that follow, the court
grants in part Westwood College’s motion as to the discrimination and retaliation claims and
raises sua sponte that Westwood College is entitled to summary judgment as to the balance
of the grounds of Tesso’s discrimination and retaliation claims. The court grants the motion
as to Tesso’s claims against Alta. Tesso may respond to the grounds the court raises sua
sponte.
I
Tesso, a black male of Ethiopian origin, was formerly employed as a faculty member
at Westwood College’s Dallas campus.1 He taught various courses in computer aided design
(“CAD”) and construction, including residential construction, CAD portfolio review,
construction, residential architectural design, and digital walkthrough and visualization.
According to Tesso’s briefing and interrogatory responses, he bases his discrimination
and retaliation claims on the following alleged incidents: (1) in May 2008 Margaret Taylor
(“Taylor”), the former Dean of Education at the Westwood College Dallas campus, yelled
at him in front of his class of “all white students;” (2) in October 2008 Taylor berated and
tried to penalize him for missing a faculty meeting; (3) in the fall of 2008 Taylor deliberately
lost his tuition reimbursement paperwork; (4) in early 2009 Taylor set his Thursday schedule
from 6:30 a.m. to 8:00 p.m.; (5) in July 2009, after Tesso returned from a conference
concerning Ethiopians at which he was scheduled to speak but did not due to time
constraints, Taylor called him a liar and docked two days’ pay; (6) in August 2009 he
“continued working . . . long days and substituting for [other] instructors;” (7) in the May
term of 2010 he “continued to receive [an] onerous schedule of Mondays, Wednesdays and
Fridays from 7 am to 6pm and Tuesdays from 12 to 6pm;” (8) in June 2010 “Taylor had [his]
1
In recounting the factual background, the court summarizes the evidence in the light
most favorable to Tesso as the summary judgment nonmovant and draws all reasonable
inferences in his favor. See, e.g., Owens v. Mercedes-Benz USA, LLC, 541 F.Supp.2d 869,
870 n.1 (N.D. Tex. 2008) (Fitzwater, C.J.) (citing U.S. Bank Nat'l Ass’n v. Safeguard Ins.
Co., 422 F.Supp.2d 698, 701 n.2 (N.D. Tex. 2006) (Fitzwater, J.)).
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credentials re-evaluated even though they had been evaluated in 2006 by the same regional
accrediting council,” and “[w]hen [he] complained that it was done incorrectly, she told
[him] to provide additional information;” (9) from June to July 2010 Taylor continued
working long hours; (10) in June 2010 he was ordered to return to work even though he was
scheduled off for two days pursuant to a doctor’s order; (11) in July 2010 he was
“[s]cheduled to work all day, attend campus meeting and cover registration”; (12) in July
2010, when the reevaluation of his credentials came back with the same errors and he again
asked why the reevaluation was necessary and if Taylor would send his credentials to a
different evaluator, she told him that “if [he] wanted another evaluation [he]’d have to get
it from another college;” (13) after Tesso filed a complaint with the Equal Employment
Opportunity Commission (“EEOC”) on September 7, 2010, Taylor refused to permit Tesso
to participate in a faculty meeting on September 13, 2010; and (14) Taylor and Paul Kepic
(“Kepic”), the President of the Westwood College Dallas campus, terminated Tesso’s
employment on October 7, 2010. Ds. Jan. 25, 2012 App. 94.
Tesso’s claims and defendants’ motion for summary judgment focus primarily on
whether his termination was lawful. In 2010 Westwood College, in an effort to align its
faculty credentialing with the guidelines established by the Higher Learning Commission,
revised its Faculty Credentialing Policy (“Policy”) to require “all faculty teaching in
programs at the diploma, associate, bachelor and master degree levels [to] have the
appropriate credentials.” Ds. Jan. 25, 2012 App. 69; see also id. at 36 (Taylor testified that
“the changes [in the Policy were] applicable to all the instructors”). The Policy required that
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a faculty member teaching “[b]achelor and associate degree transfer courses” “have [a]
graduate degree in the subject area taught OR a graduate degree AND a minimum of 18
semester/27 quarter graduate credits related to course/s to be taught, except areas where
graduate degrees [are] not readily available.” Id. at 69. Westwood College audited the
credentials of the Dallas faculty in accordance with the Policy. As part of this process, it
hired Global Credential Evaluators, Inc. (“Global Credential”), “an independent, third-party
credential evaluator” and “a member of the National Association of Credential Evaluation
Services,” to translate foreign academic and experiential credentials into an equivalent degree
from a United States educational institution.2 See id. at 50-51.
Global Credential examined Tesso’s degrees from Addis Abab University in Ethiopia
and Odessa Civil Engineering Institute in Russia and concluded in June 2010 that the
degrees, respectively, were “equivalent to an Associate of Science in Drafting Technology
and a Bachelor of Science in Architecture” from “a regionally accredited university in the
U.S.” Id. at 74. In other words, Tesso “lacked the equivalent of a United States masters
degree which was necessary to continue teaching bachelor and associate degree transfer
courses as a full-time faculty member under the new . . . Policy.” Id. at 41. Following a
reevaluation3 and reaffirmation4 by Global Credential in July 2010, Westwood College
2
According to Evelyn Falk, Vice President of Human Resources, “Westwood
[College] did not participate in or provide input into the evaluation of Plaintiff’s (or any other
instructor’s) credentials.” Ds. Jan. 25, 2012 App. 51.
3
According to defendants, because Tesso disagreed with Global Credential’s original
report, “Westwood [College] sent another package on his behalf to Global Credential,”
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terminated Tesso on October 7, 2010. Tesso’s notice of termination states that he was “not
credentialed to teach courses at Westwood College.” Id. at 84.
Defendants move for summary judgment dismissing all of Tesso’s claims. They
contend that Tesso cannot recover on his race- and national origin-based discrimination
claims for the alleged incidents that occurred before November 11, 2009, which is 300 days
before he filed his first charge of discrimination on September 7, 2010. They also posit that
Tesso’s discrimination claims fail because he is unable to establish a prima facie case and,
even if he can, defendants have a legitimate, nondiscriminatory reason for their employment
decisions that is not pretextual. And regarding the retaliation claim, defendants contend that
Tesso cannot establish a causal connection between his protected activity of filing a charge
of discrimination and the adverse employment action of termination, and that, even if he can,
defendants have a legitimate, nondiscriminatory reason for their action that is not pretextual.
Defendants maintain that the claims against Alta should be dismissed because Tesso has not
exhausted his administrative remedies, Tesso lacks evidence demonstrating that he was
“granted . . . Tesso an extension of . . . time to submit additional materials that he believed
accurately reflected his academic credentials,” and, “even though . . . Tesso . . . failed to
timely deliver the materials, . . . allowed him to tardily submit the same and be involved in
packaging and mailing the materials to allay his concerns that [Westwood College] was not
including all of his credentials.” Ds. Jan. 25, 2012 App. 42. Nonetheless, in July 2010
Global Credential reaffirmed its original findings.
4
After receiving the reevaluation by Global Credential, Taylor emailed Susan Mabry
(“Mabry”), the Global Credential evaluator, seeking confirmation that Tesso’s Russian
degree did not qualify as a 5-year bachelor/master Architecture program offered by certain
U.S. institutions. Mabry replied that Tesso’s degree “is only a Bachelor’s degree.” Ds. Jan.
25, 2012 App. 79.
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employed by Alta, and the allegations against Alta are not distinct from those against
Westwood College and thus fail for the same reasons. Tesso opposes the motion.
II
Because defendants are moving for summary judgment on claims as to which Tesso
will bear the burden of proof at trial, they can obtain summary judgment as to the claim in
question by pointing the court to the absence of evidence on any essential element of the
claim. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once they do so, Tesso must
go beyond his pleadings and designate specific facts demonstrating that there is a genuine
issue for trial. See id. at 324; Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)
(en banc) (per curiam). An issue is genuine if the evidence is such that a reasonable jury
could return a verdict for Tesso on the claim in question. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). Tesso’s failure to produce proof as to any essential element of the
claim renders all other facts regarding that claim immaterial. See Trugreen Landcare, L.L.C.
v. Scott, 512 F.Supp.2d 613, 623 (N.D. Tex. 2007) (Fitzwater, J.). Summary judgment for
defendants is mandatory as to the claim in question if Tesso fails to meet this burden. Little,
37 F.3d at 1076.
The court can raise sua sponte that summary judgment is warranted on a particular
claim, provided it affords Tesso notice and a fair opportunity to respond. See, e.g., Jackson
v. Fed. Express Corp., 2006 WL 680471, at *9 (N.D. Tex. Mar. 14, 2006) (Fitzwater, J.)
(citing Arkwright-Boston Mfrs. Mut. Ins. Co. v. Aries Marine Corp., 932 F.2d 442, 445 (5th
Cir. 1991)).
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III
The court examines first defendants’ contention that Tesso cannot recover on his
discrimination claims for the alleged incidents that occurred before November 11, 2009,
which is 300 days before he filed his first charge of discrimination on September 7, 2010.
Under Title VII, “the date for determining timeliness [is] 300 days prior to the filing
of the first filed charge.” Frank v. Xerox Corp., 347 F.3d 130, 136 (5th Cir. 2003); see also
42 U.S.C. § 2000e-5(e)(1). Any conduct occurring prior to the 300 days is time-barred. See
Frank, 347 F.3d at 136. It is undisputed that Tesso filed his first charge of discrimination on
September 7, 2010.5 Defendants thus posit that Tesso is barred from asserting conduct that
occurred before November 11, 2009, which is 300 days before the September 7, 2010 charge.
Based on this reasoning, defendants assert that the first six incidents on which Tesso relies
are barred because they occurred before November 2009.
Tesso neither responds to this argument nor cites evidence that would permit a
reasonable trier of fact to find that these incidents were part of a continuing violation that
lasted into the limitations period. Accordingly, the court concludes that the six incidents in
question are time-barred, and it dismisses Tesso’s discrimination claims to the extent they
5
According to defendants’ evidence, Tesso filed a charge of discrimination on
September 7, 2010 with the Texas Workforce Commission (“TWC”), which was
concurrently filed with the EEOC, alleging discrimination based on race and national origin.
The EEOC issued a dismissal and notice of rights on November 9, 2010. After Tesso was
terminated, he filed a second charge of discrimination based on race, national origin, and
retaliation for his first EEOC charge. This charge was filed in October 2010 with the TWC,
and was concurrently filed with the EEOC. The EEOC issued a dismissal and notice of right
to sue on March 22, 2011.
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are based on these incidents. See Ramirez v. Univ. of Tex. Sw. Med. Ctr., 2005 WL 1017820,
at *3 (N.D. Tex. Apr. 28, 2005) (Fitzwater, J.) (holding that plaintiff could not recover under
Title VII for conduct that took place 300 days before charge of discrimination was filed, and
that plaintiff’s contention that it was a continuing violation was conclusory and not supported
by evidence).
IV
The court turns next to defendants’ contention that Tesso is unable to establish a prima
facie case of race- or national origin-based discrimination and, even if he can, that defendants
have a legitimate, nondiscriminatory reason for their employment decisions.
A
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, color, religion, sex, or national origin[.]” 42 U.S.C.
§ 2000e-2(a)(1). To prevail on his discrimination claim, Tesso must present direct or
circumstantial evidence that his race or national origin was a motivating factor for
defendants’ adverse employment action. See, e.g., Siddiqui v. AutoZone West, Inc., 731
F.Supp.2d 639, 648 (N.D. Tex. 2010) (Fitzwater, C.J.) (addressing Title VII claims for
rase-based harassment, discrimination based on race, ethnicity, national origin, and religion,
and retaliation).
“‘Direct evidence is evidence that, if believed, proves the fact of
discriminatory animus without inference or presumption.’” West v. Nabors Drilling USA,
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Inc., 330 F.3d 379, 384 n.3 (5th Cir. 2003) (Fitzwater, J.) (quoting Sandstad v. CB Richard
Ellis, Inc., 309 F.3d 893, 897 (5th Cir. 2002)) (age discrimination case). “If an inference is
required for the evidence to be probative as to [a defendants’] discriminatory animus in firing
[plaintiff], the evidence is circumstantial, not direct.” Sandstad, 309 F.3d at 897-98. Tesso
does not specifically refer in his motion or amended complaint to any direct evidence of
discrimination.6 The court holds that he is relying on circumstantial evidence to prove
intentional discrimination.
B
Because Tesso is relying on circumstantial evidence, he must establish discrimination
using the “modified McDonnell Douglas approach.” Rachid v. Jack in the Box, Inc., 376
F.3d 305, 312 (5th Cir. 2004) (age discrimination case). As modified, McDonnell Douglas
consists of three stages. First, Tesso must establish a prima facie case of discrimination,
which “creates a presumption that [defendants] unlawfully discriminated against [him].”
Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 254 (1981). Second, the burden shifts
to defendants to articulate a legitimate, nondiscriminatory reason for the employment action
taken against Tesso. See St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506-07 (1993).
Defendants’ burden is one of production, not proof, and involves no credibility assessments.
6
Moreover, when Tesso was asked whether there was direct evidence that a decision
about his credentialing was made on the basis of race or national origin, he responded that
he “really [did not] know” and that he believed that there was discrimination because he did
not know anyone who was treated like he. Ds. Jan. 25, 2012 App. 24. This statement
corroborates that his claims are based on circumstantial evidence.
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See, e.g., West, 330 F.3d at 385. Third, if defendants meet their production burden, Tesso
may prove intentional discrimination by proceeding under one of two alternatives: the pretext
alternative or the mixed-motives alternative. See Rachid, 376 F.3d at 312. Under the pretext
alternative, Tesso must “offer sufficient evidence to create a genuine issue of material fact
. . . that [defendants’] reason is not true, but is instead a pretext for discrimination.” Id.
(internal quotation marks and citation omitted). Under the mixed-motives alternative, Tesso
must offer sufficient evidence to create a genuine issue of material fact “that [defendants’]
reason, while true, is only one of the reasons for [their] conduct, and another motivating
factor is [Tesso’s] protected characteristic.” Id. (internal quotation marks and citation
omitted).
V
To establish a prima facie case of discrimination, Tesso may show that (1) he was
within the protected class; (2) he was qualified for the position; (3) he was subject to an
adverse employment action; and (4) he was replaced by someone outside the protected class,
or, in the case of disparate treatment, other similarly situated employees were treated more
favorably. See, e.g., Bryan v. McKinsey & Co., 375 F.3d 358, 360 (5th Cir. 2004) (citing
Okoye v. Univ. of Tex. Hous. Health Sci. Ctr., 245 F.3d 507, 512 (5th Cir. 2001)).
Tesso bases his discrimination claims on the following remaining incidents (i.e., (7)
through (14)): his credentials ((8) and (12)); his termination ((14)); several instances in which
he was required to work long hours ((7), (9), and (11)); requiring him to return to work
despite a doctor’s order ((10)); and barring him from participating in a faculty meeting ((13)).
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Defendants argue that Tesso cannot establish a prima facie case of discrimination for at least
a few of these. In particular, defendants contend that certain incidents do not constitute
adverse employment actions, that Tesso’s discharge was lawful because he was no longer
qualified for his position, and that Tesso is unable to demonstrate that he was treated less
favorably than other similarly-situated employees regarding his termination and hours.
VI
The court examines first defendants’ argument that certain alleged incidents do not
constitute adverse employment actions, the third element of a prima facie case.
A
“[A] plaintiff must show that he was subject to an ultimate employment decision to
establish a prima facie case of discrimination.” Arrieta v. Yellow Transp., Inc., 2008 WL
5220569, at *4 (N.D. Tex. Dec. 12, 2008) (Fitzwater, C.J.), aff’d sub nom. Hernandez v.
Yellow Transp., Inc., 670 F. 3d 644 (5th Cir. 2012) (on rehearing). The Fifth Circuit “has a
strict interpretation of the adverse employment element of [the] prima facie intentional
discrimination case” under Title VII. Pegram v. Honeywell, Inc., 361 F.3d 272, 282 (5th Cir.
2004); see also Dixon v. Moore Wallace, Inc., 2006 WL 1949501, at *8 (N.D. Tex. July 13,
2006) (Fitzwater, J.), aff’d, 236 Fed. Appx. 936 (5th Cir. 2007). For purposes of a
discrimination claim brought under these statutes, “[a]dverse employment actions include
only ultimate employment decisions such as hiring, granting leave, discharging, promoting,
or compensating.” McCoy v. City of Shreveport, 492 F.3d 551, 559 (5th Cir. 2007) (per
curiam) (alteration in original; internal quotation marks and citation omitted). “[A]n
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employment action that does not affect job duties, compensation, or benefits is not an adverse
employment action for purposes of a discrimination claim under Title VII.” Dixon, 2006 WL
1949501, at *8 (quoting Pegram, 361 F.3d at 282) (internal quotation marks omitted); see
also Arrieta, 2008 WL 5220569, at *5 (holding that “disciplinary warnings and negative
performance evaluations do not constitute adverse employment actions because they have
only a tangential effect, if any, on ultimate employment decisions”).
B
Defendants move for summary judgment dismissing Tesso’s discrimination claims
to the extent they are based on Taylor’s refusal to permit Tesso to participate in the faculty
meeting.7 Tesso does not attempt to refute defendants’ argument.8 The court holds that the
refusal to permit Tesso to participate in the faculty meeting does not qualify as an adverse
employment action, given that Tesso has made no showing that it “affect[s] job duties,
compensation, or benefits.” See Dixon, 2006 WL 1949501, at *8 (internal quotation marks
and citation omitted). The court dismisses the discrimination claims to the extent based on
this predicate. See id. at *9.
The court raises sua sponte that defendants are entitled to dismissal to the extent the
discrimination claims are based on instances when Tesso was required to work long hours.
7
Defendants also move for summary judgment concerning the incidents that the court
has already addressed above and as to which it has granted summary judgment.
8
Although Tesso does address this element in his brief, his discussion is limited to his
termination. See P. Br. 13 (“It is undisputed that Tesso belongs to a protected class and
suffered an adverse employment decision when he was terminated by Defendants.”).
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Even if Tesso could adduce supporting evidence, “[m]erely changing [one’s] hours, without
more, does not constitute an adverse employment action.” Benningfield v. City of Hous., 157
F.3d 369, 377 (5th Cir. 1998); see also Minor v. Alcatel USA Res., Inc., 2007 WL 1452895,
at *2 (E.D. Tex. May 17, 2007) (in addressing plaintiff’s allegations that she was assigned
larger workload, holding that “plaintiff fail[ed] to produce evidence that would establish that
her work load represented an ‘ultimate employment decision’ on the part of her employer”).9
The court also raises sua sponte that defendants are entitled to dismissal to the extent
Tesso’s discrimination claims are based on requiring him to return to work despite a doctor’s
contrary order. Even assuming that Tesso could produce supporting evidence, this does not
qualify as an adverse employment action. Cf. Washington v. Veneman, 109 Fed. Appx. 685,
689 (5th Cir. 2004) (per curiam) (reaffirming that “scheduling training on a Holiday Program
day” was not adverse employment action) (citing Hernandez v. Crawford Bldg. Material, 321
F.3d 528, 532 n.2 (5th Cir. 2003) (per curiam)).
To the extent Tesso is basing his discrimination claims on the evaluations of his
credentials alone, the court raises sua sponte that defendants are entitled to dismissal of the
claims. Even assuming that Tesso could adduce supporting evidence, this does not qualify
as an adverse employment action. Cf. Mora v. Ashcroft, 142 Fed. Appx. 206, 207 (5th Cir.
9
Even if Tesso were able to demonstrate that this is an adverse employment action,
his claim is subject to dismissal on other grounds. Defendants assert that Tesso cannot
establish that, in being required to work long hours, he was treated less favorably than
similarly situated instructors outside his protected class. Tesso does not respond to this
argument in his brief.
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2005) (per curiam) (“[N]either the investigation nor the letter amount to an adverse
employment action.”) (citing cases); Arrieta, 2008 WL 5220569, at *11 (“[N]egative
performance evaluations do not constitute adverse employment actions because they have
only a tangential effect, if any, on ultimate employment decisions.”).
In summary, the court dismisses Tesso’s discrimination claims to the extent they are
based on Taylor’s refusal to permit Tesso to participate in the faculty meeting, and it raises
sua sponte that the claims must also be dismissed to the extent they are based on requiring
him to work long hours, ordering him to return to work despite a doctor’s contrary order
otherwise, and evaluating his credentials.
VII
The remaining ground of Tesso’s discrimination claims pertains to his termination.
Defendants contend that Tesso cannot establish the prima facie elements that he was
qualified for the position and that he was treated less favorably than other similarly-situated
employees. Because the claims fail on other grounds, the court will assume arguendo that
Tesso has established a prima facie case. See Arrieta, 2008 WL 5220569, at *11. The
burden has therefore shifted to defendants to proffer a legitimate, nondiscriminatory reason
for Tesso’s termination.
Defendants have produced evidence that Tesso was terminated because he did not
have the requisite graduate degree, as required under the Policy that was applicable to all
faculty instructors. They have met their burden of producing evidence of a legitimate,
nondiscriminatory reason for Tesso’s termination. See, e.g., Smith v. Stokes Distrib. Co., 166
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F.3d 340, 1998 WL 912166, at *1 (5th Cir. 1998) (unpublished opinion) (noting that not
promoting employee “because he lacked the requisite license [was] a legitimate,
nondiscriminatory reason for [employer’s] refusal to promote him”).
Tesso asserts that defendants’ reason is pretextual. In particular, Tesso argues that
Westwood College did not evaluate one of his degrees—a master’s degree in city and
regional planning he received from the University of Texas, Arlington (“UTA”) in 2005—but
instead based its termination on his foreign degrees, as translated by Global Credential.
Tesso posits that his UTA master’s degree would have satisfied the Policy requirements for
a CAD instructor.10 He also questions why Westwood College would permit him to begin
teaching the fall term if Global Credential determined in June and July that he was not
qualified to instruct under the Policy.11
10
Although the UTA master’s degree is in the field of city and regional planning, he
maintains on two grounds that it is sufficient for a CAD instructor. First, he asserts that
Taylor and Kepic were unable to identify the requisite master’s degree for a CAD instructor,
and that the Policy does not address this, merely stating in the “User’s Guide Delineated by
Degree or Subject” that an “Acceptable Masters Degree” in the “Cad” course area is as
follows: “Bachelor degree preferred AND significant and appropriate course work [OR]
Associate Degree required [AND] significant and appropriate course work.” P. App. 60
(emphasis omitted). Second, Tesso contends that “Architecture, Urban, City and Regional
Planning are related fields of stud[y] for [CAD].” P. Br. 6.
11
Tesso also asserts that Westwood College’s reason for terminating him lacks
credence under Burrell v. Dr. Pepper/Seven Up Bottling Group, Inc., 482 F.3d 408, 415 (5th
Cir. 2007), because it “shifted.” P. Br. 15. He asserts that, in Westwood College’s position
statement to the EEOC, defendants stated that Tesso was not qualified to instruct because
“[he] did not possess a master’s degree.” Id. And he posits that defendants are now arguing
that he “did not possess ‘. . . the equivalent of a United States master’s degree according to
the evaluation by Global Credential.[’]” Id. at 16 (emphasis in original). The court
disagrees.
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Even assuming arguendo that a master’s degree in city and regional planning can
satisfy the Policy as an appropriate degree for a CAD instructor, Tesso has failed to adduce
sufficient evidence to enable a reasonable trier of fact to find that he received a UTA
master’s degree. In support of his assertion, Tesso cites only the deposition of Taylor.
Taylor was asked to read the first page of an “Accrediting Council for Independent Colleges
and Schools” (“ACICS”)12 data sheet. P. App. 18. According to Taylor, this sheet included
in Tesso’s educational information “UTA, City and Regional Planning, master’s degree, May
of 2005.” Id. Defendants cite the next page of Taylor’s deposition, in which she testified
that the document was “invalid” and “not one that was ever approved to be in [our] file.” Ds.
Mar. 14, 2012 App. 2. Instead, it appears that this document may have been created by Tesso
for submission to Westwood College. Furthermore, Tesso has produced a “Data Sheet for
Staff and Faculty Members” that lists his masters degree from UTA. P. App. 26. It appears
that this document is the same one that Taylor examined in her deposition, since it is
identified at the bottom by the same exhibit number and the second page contains the
Westwood College stated in the position statement that Global Credential concluded
that his foreign credentials were equivalent to an Associate of Science and Bachelor of
Science and, as a result, Tesso lacked the “requisite masters degree.” P. App. 79.
Accordingly, even assuming that Tesso’s reading of Burrell is correct, his argument lacks
force because Westwood College did represent in its position statement that it based its
determination on Global Credential’s evaluations.
12
Although Taylor referred to this institution as the “Accrediting Commission of
Colleges and Independent Schools,” P. App. 18, it appears that it is actually the “Accrediting
Council for Independent Colleges and Schools.”
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“ACICS” emblem.13 This document further suggests that it was filled out by Tesso, because,
inter alia, it directs the writer to “List each position you have held for the past ten years,” and
it requires the “Staff Member” to sign at the end and state: “I certify that the above
statements are true, to the best of my knowledge.” Id. at 26-27 (emphasis added).
Without competent evidence, a reasonable jury could not find that Tesso received a
master’s degree in city and regional planning from UTA in 2005 and find on that basis that
defendants’ explanation is pretextual. Accordingly, the court grants defendants’ motion for
summary judgment as to the discrimination claims to the extent they are based on his
termination.
VIII
Tesso also sues defendants on a retaliation claim that is based on the same fourteen
grounds.
A
Title VII’s anti-retaliation provision prohibits employers from “discriminat[ing]
against” an employee “because he has opposed any practice made an unlawful employment
practice” by Title VII or “because he has made a charge, testified, assisted, or participated
in any manner in an investigation, proceeding, or hearing” under Title VII. 42 U.S.C.
§ 2000e-3(a). Tesso offers no direct evidence of retaliation, so he must proceed under the
McDonnell Douglas burden shifting paradigm. He must demonstrate a prima facie case for
13
The first page does not contain this emblem because it appears that it was covered
over in the copy filed with the court.
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retaliation by showing that (1) he engaged in a protected activity, (2) an adverse employment
action occurred, and (3) a causal link existed between the protected activity and the adverse
employment action. See, e.g., Walker v. Norris Cylinder Co., 2005 WL 2278080, at *9 (N.D.
Tex. Sept. 19, 2005) (Fitzwater, J.) (citing Long v. Eastfield Coll., 88 F.3d 300, 304 (5th Cir.
1996)). As to the third element, the initial requirement that a plaintiff show a “causal link”
between a protected activity and an adverse employment action is “much less stringent” than
the “but for” causation that a jury must find. Montemayor v. City of San Antonio, 276 F.3d
687, 692 (5th Cir. 2001); see also Khanna v. Park Place Motorcars of Hous., Ltd., 2000 WL
1801850, at *4 (N.D. Tex. Dec. 6, 2000) (Fitzwater, J.) (characterizing prima facie burden
as “minimal”).
If Tesso establishes a prima facie case, the burden shifts to defendants to articulate a
legitimate, nondiscriminatory reason for the alleged retaliatory action taken. This burden is
one of production, not of proof. See Wooten v. Fed. Express Corp., 2007 WL 63609, at *16
(N.D. Tex. Jan. 9, 2007) (Fitzwater, J.), aff’d, 325 Fed. Appx. 297 (5th Cir. 2009).
If defendants meet their production burden, Tesso must adduce evidence that would
permit a reasonable jury to find that the adverse employment action would not have occurred
but for the protected conduct. See Walker, 2005 WL 2278080, at *9. “After the employer
has produced evidence to rebut the employee’s prima facie case of retaliation, the showing
that the plaintiff must make to establish causation is more onerous than that initially required
to present a prima facie case.” Phillips v. Credit Lyonnais, 2002 WL 1575412, at *8 n.4
(N.D. Tex. July 16, 2002) (Fish, C.J.) (citing Sherrod v. Am. Airlines, Inc., 132 F.3d 1112,
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1122 n.8 (5th Cir. 1998); Long, 88 F.3d at 305 n.4). “The ultimate determination in an
unlawful retaliation case is whether the conduct protected by Title VII was a ‘but for’ cause
of the adverse employment decision.” Long, 88 F.3d at 305 n.4.
B
Tesso states in his interrogatory response that his retaliation claim is based on the
same fourteen incidents as were his discrimination claims. Defendants appear to move for
summary judgment solely to the extent the retaliation claim is based on Tesso’s termination.
Because of this, the court raises sua sponte that defendants are entitled to summary judgment
dismissing the retaliation claim to the extent it is based on the other thirteen incidents.
First, Tesso has not alleged that he was engaged in a protected activity with respect
to at least the first twelve incidents. Cf. Mota v. Univ. of Tex. Hous. Health Sci. Ctr., 261
F.3d 512, 519 (5th Cir. 2001) (“‘Protected activity’ is defined as opposition to any practice
rendered unlawful by Title VII, including making a charge, testifying, assisting, or
participating in any investigation, proceeding, or hearing under Title VII.”). Tesso cannot
use his filing of the first charge of discrimination as the predicate protected activity because
this occurred on September 7, 2010, after the alleged incidents in question.
Second, several of these incidents, such as Taylor’s reprimands, her refusal to permit
Tesso to participate in a faculty meeting, and the requirement that Tesso work long hours,
do not qualify as adverse employment actions. Cf. Hernandez, 321 F.3d at 532 n.2 (listing
activities that are and are not ultimate employment decisions).
Third, Tesso has failed to adduce evidence that would enable a reasonable jury to find
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a causal link between the alleged protected activity and adverse employment action. Without
such evidence, Tesso is unable to establish a prima facie case.
C
Defendants rely on two arguments to support dismissal of Tesso’s retaliation claim
to the extent it is based on his termination: first, that Tesso cannot establish a causal link
between the protected activity and the adverse employment action; and, second, that Tesso
cannot establish that defendants’ reason for terminating him is pretextual.
1
The court considers first defendants’ contention that Tesso cannot establish a causal
link between the protected activity and the adverse employment action. The standard for
satisfying the causation element at the prima facie stage is “much less stringent” than the “but
for” causation that a jury must find. Montemayor, 276 F.3d at 692. An employee must, at
the least, “produce at least some evidence that the decisionmakers had knowledge of his
protected activity.” Manning v. Chevron Chem. Co., 332 F.3d 874, 883 & n.6 (5th Cir.
2003). “Close 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.” Swanson v. Gen. Servs. Admin., 110 F.3d 1180, 1188 (5th Cir. 1997) (citing
Armstrong v. City of Dall., 997 F.2d 62, 67 (5th Cir. 1993)). The temporal proximity,
however, must be very close. See Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273-74
(2001) (citing with approval O'Neal v. Ferguson Constr. Co., 237 F.3d 1248, 1253 (10th Cir.
2001) (stating that 1½ month period between protected activity and adverse action could, by
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itself, establish causation)).
It is undisputed that Tesso filed his first charge of discrimination on September 7,
2010 and that he was terminated on October 7, 2010. The close timing between the two
events is sufficient to establish the requisite causal connection under the third prong of the
prima facie case. See, e.g., O’Neal, 237 F.3d at 1253; Sizemore v. Dolgencorp of Tex., Inc.,
2012 WL 1969951, at *11 (E.D. Tex. June 1, 2012) (holding that termination that followed
less than one month after discrimination complaint was filed was sufficient to meet causal
connection element of prima facie case).
2
Defendants next contend that Tesso cannot establish that defendants’ reason for
terminating him is pretextual. They maintain that they terminated Tesso because, under the
Policy, he was not qualified to instruct CAD courses. Defendants argue that Tesso “offers
nothing more than conclusory allegations, speculation, and his own subjective belief that
Westwood [College] made these decisions with imagined retaliatory animus,” which “is
insufficient to defeat summary judgment.” Ds. Br. 22.
Tesso responds that a reasonable trier of fact could find that defendants terminated
him, not on the basis of his credentials, but because he filed an EEOC charge. He posits that
defendants were aware that he was not qualified to teach in June and July 2010, since that
is when, respectively, Global Credential reported its evaluation and reevaluation of Tesso but
yet allowed him to teach in August 2010. It was only when Tesso filed an EEOC charge that
defendants terminated him in October 2010. In other words, Tesso relies on the timing of
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Westwood College’s termination to prove that its reason is pretextual.
“[T]iming can sometimes be a relevant factor in determining whether a causal
connection exists where the timing between a protected activity and an adverse employment
action is ‘suspicious[ly]’ proximate[.]” Fabela v. Socorro Indep. Sch. Dist., 329 F.3d 409,
417 n.9 (5th Cir. 2003) (alteration in original), overruled on other grounds as recognized by
Smith v. Xerox Corp., 602 F.3d 320, 327-28 (5th Cir. 2010). But the Fifth Circuit has
explicitly held that temporal proximity alone is insufficient to establish “but for” causation.
See Strong v. Univ. Healthcare Sys., L.L.C., 482 F.3d 802, 808 (5th Cir. 2007).
To prevent future litigants from relying on temporal
proximity alone to establish but for causation, we once again
attempt to clarify the issue. In Clark County School District v.
Breeden, the Supreme Court noted that cases that accept mere
temporal proximity as sufficient evidence of causality to
establish a prima facie case uniformly hold that the temporal
proximity must be very close. Breeden makes clear that (1) to
be persuasive evidence, temporal proximity must be very close,
and importantly (2) temporal proximity alone, when very close,
can in some instances establish a prima facie case of retaliation.
But we affirmatively reject the notion that temporal proximity
standing alone can be sufficient proof of but for causation.
Id. (addressing Title VII) (emphasis in original; citations, internal quotation marks, and
ellipsis omitted).
Tesso has provided no evidence of retaliation except for temporal proximity and his
mere suspicion that the termination was in retaliation for the EEOC charge, both of which
are insufficient. See id. at 808-09 (affirming summary judgment against plaintiff who relied
only on temporal proximity and had no evidence, for example, that she was harassed about
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EEOC complaint); Pennington v. Tex. Dep’t of Family & Protective Servs., 469 Fed. Appx.
332, 339 (5th Cir. 2012) (holding that subjective belief of retaliation is insufficient alone to
establish pretext). For example, he has not identified any similarly situated employee who
was not terminated despite his lack of qualification under the Policy. Cf. Dooley v. Parks &
Recreation for Parish of E. Baton Rouge, BREC, 433 Fed. Appx. 321, 325 (5th Cir. 2011)
(per curiam) (holding that plaintiff failed to rebut defendant’s legitimate, nondiscriminatory
reason because, inter alia, he did not identify any similarly situated employee who was not
terminated after similar conduct). Accordingly, the court dismisses Tesso’s retaliation claim
to the extent it is based on his termination.
IX
Defendants also assert that the claims against Alta should be dismissed because Tesso
has not exhausted his administrative remedies, Tesso lacks evidence demonstrating that he
was employed by Alta, and the allegations against Alta are not distinct from those against
Westwood College and should be dismissed on the same grounds. Tesso does not respond
to these arguments. Accordingly, the court dismisses Tesso’s discrimination and retaliation
claims against Alta. See Little, 37 F.3d at 1076.
X
Regarding the grounds that the court has raised sua sponte, Tesso may file an
opposition response, brief, and appendix within 21 days of the date this memorandum
opinion and order is filed. The court will evaluate Tesso’s papers before deciding whether
to invite Westwood College to reply.
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*
*
*
For the reasons explained, the court grants in part Westwood College’s motion as to
Tesso’s discrimination and retaliation claims and raises sua sponte that Westwood College
is entitled to summary judgment as to the balance of the grounds of Tesso’s discrimination
and retaliation claims. The court grants the motion as to Tesso’s claims against Alta. Tesso
may respond to the grounds the court raises sua sponte.
SO ORDERED.
August 8, 2012.
_________________________________
SIDNEY A. FITZWATER
CHIEF JUDGE
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