Washington v. Tarrant County, Texas

Filing 45

MEMORANDUM OPINION AND ORDER: The court ORDERS that defendant's 18 motion for summary judgment be, and is hereby, granted; that plaintiff take nothing on her claims against defendant; and that such claims be, and are hereby, dismissed. (Ordered by Judge John McBryde on 9/7/2018) (tln)

U.S. DISTRICT COURT
NORTHERN DISTRICT OF TEXAS

FILED

IN THE UNITED STATES DISTRICT C URT
NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
TULANI WASHINGTON,

SEP - 7 2018

CLERK, U.S.,..-'""'""'_ __
By _ _ DISTRICT COURT

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§

Plaintiff,

Depu

§

§

vs.

§

NO. 4:18-CV-020-A

§

TARRANT COUNTY,

§
§

Defendant.

§

MEMORANDUM OPINION AND ORDER
Came on for consideration the motion, supplement to motion,
and second supplement to motion of defendant, Tarrant County,
Texas,

for summary judgment. The court, having considered the

motion and its supplements, the response of plaintiff, Tulani
Washington, the reply, the record,

including the summary judgment

evidence, and applicable authorities, finds that the motion (as
supplemented)

should be granted.
I.
Plaintiff's Claims

The background of this action is described in the court's
April 17, 2018 memorandum opinion and order. Doc. 1 15. The only
remaining claims are asserted under Title VII of the Civil Rights
Act of 1964, 42 U.S.C.

§§

2000e to 2000e-17

("Title VII"), and

under chapter 21 of the Texas Labor Code for failure to promote
based on race discrimination.

'The "Doc.

"reference is to the number of the item on the docket in this action.

As previously recited, plaintiff was employed by defendant
in the district attorney's office, prosecuting misdemeanor
crimes. She was not promoted. She resigned in January 2017.
II.
Grounds of the Motion
Defendant seeks judgment on the grounds that plaintiff
cannot establish a prima f acie case of race discrimination and,
even if she could, she cannot show that defendant's reason for
failing to promote her was a pretext for discrimination. Doc. 18
at 1-2.
III.
Applicable Summary Judgment Principles
Rule 56(a) of the Federal Rules of Civil Procedure provides
that the court shall grant summary judgment on a claim or defense
if 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); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247
(1986) .

The movant bears the initial burden of pointing out to

the court that there is no genuine dispute as to any material
fact.

Celotex Corp. v. Catrett, 477 U.S. 317, 323, 325 (1986).

The movant can discharge this burden by pointing out the absence
of evidence supporting one or more essential elements of the
nonmoving party's claim,

"since a complete failure of proof

2

concerning an essential element of the nonmoving party's case
necessarily renders all other facts immaterial."

Id. at 323.

Once the movant has carried its burden under Rule 56(a), the
nonmoving party must identify evidence in the record that creates
a genuine dispute as to each of the challenged elements of its
case.

Id. at 324; see also Fed. R. Civ. P. 56(c)

asserting that a fact
the assertion by
the record

("A party

is genuinely disputed must support
citing to particular parts of materials in

• fl )

•

If the evidence identified could not lead

a rational trier of fact to find in favor of the nonmoving party
as to each essential element of the nonmoving party's case, there
is no genuine dispute for trial and summary judgment is
appropriate.

Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

475 u. s.

587' 597 (1986).

574,

In Mississippi Prot. & Advocacy

Sys., Inc. v. Cotten, the Fifth Circuit explained:
Where the record, including affidavits,
interrogatories, admissions, and depositions could not,
as a whole, lead a rational trier of fact to find for
the nonmoving party, there is no issue for trial.
929 F.2d 1054, 1058 (5th Cir. 1991).
The standard for granting a motion for summary judgment is
the same as the standard for rendering judgment as a matter of
law. 2

Celotex Corp., 477 U.S. at 323.

2

If the record taken as a

ln Boeing Co. v. Shipman, 411 F.2d 365, 374-75 (5th Cir. 1969) (en bane), the Fifth Circuit
(continued ... )
3

whole could not lead a rational trier of fact to find for the
non-moving party, there is no genuine issue for trial.
Matsushita, 475 U.S. at 597; see also Mississippi Prot. &
Advocacy Sys.,

929 F.2d at 1058.
IV.
Undisputed Facts

The summary judgment record establishes without genuine
dispute the following:
Plaintiff is an African-American female. She was employed by
defendant as an assistant criminal district attorney misdemeanor
prosecutor (Attorney I Grade 72)

from July 20, 2015, until she

resigned on January 18, 2017. Doc. 20 at DA 186, 203-04, 209. Her
supervisors were Lloyd Whelchel

("Whelchel"), section chief of

the misdemeanor section, and Melinda Westmoreland, deputy chief
of the misdemeanor section. Id. at DA 012.
Whelchel counseled plaintiff several times about working
with others,

3

asking her to leave her door or blinds open. Doc.

20 at DA 013. He also counseled her about responding to defense
attorneys and completing follow-up work that needed to be done,

'( ... continued)
explained the standard to be applied in determining whether the cmut should enter judgment on motions
for directed verdict or for judgment notwithstanding the verdict.
3

Part of plaintifrs job was to help train newer attorneys, but plaintiff did not think so. Doc. 43 at
PA 100.1.

4

like calling victims and witnesses in a timely manner. Id. at DA
014. Plaintiff maintained a messy office and had poor time
management, organization and communication skills. Id. at DA 013,
025. Investigators complained about her poor communication
skills. Id. at DA 013, DA 026. One of them met with her to give
advice on being more organized. Id. He observed that her failure
to notify witnesses that they were not needed for trial was
causing unnecessary inconvenience to them and disruption to their
work schedules. Id. at DA 240. He gave her a spreadsheet he had
developed to track people served for trial and offered to show
her how to use it, but she did not seem interested and he never
received any indication that she used it. Id.
As part of his duties as section chief, Whelchel prepared a
performance appraisal of plaintiff. Doc. 20 at DA 018,

021-22. In

early November 2016, Whelchel and Westmoreland met with plaintiff
to discuss her performance appraisal and areas in which she
needed to improve. Doc. 31 at DA 022, 060. In particular, they
discussed in depth the need for good communications with defense
attorneys, such as promptly returning calls and emails, and
professionalism in dealing with them. 4 Id. By that time,

'The reference in the performance appraisal to the need to communicate and not become
frustrated arose out of a trial in which plaintiff lost her temper and yelled at a defense attorney, Doc. 20
at DA 018, and cursed and threw things in her office and said she was too mad to talk to the defense
attorney, id. at DA 026.

5

Westmoreland recommended that plaintiff be terminated, Doc. 20 at
DA 026, but Whelchel decided to give her another chance, id. at
DA 027; Doc. 31 at DA 060. On November 9, 2016, plaintiff was on
the promotion list as number 10 of 12 to be promoted. Doc. 43 at
PA 4.
On December 6, 2016, Larry Moore ("Moore"), chief of the
criminal division, emailed Whelchel to ask whether plaintiff and
another prosecutor were still the next in line to be promoted.
Id. at PA 6. Whelchel responded that they were. Id. Almost
immediately thereafter, Whelchel was approached by a defense
attorney who complained that he had been trying to get a response
from plaintiff for months regarding a plea agreement but she
would not respond. Doc. 31 at DA 022.

(The failure to respond to

this attorney had been discussed with plaintiff in the meeting
regarding her performance appraisal. Id. at DA 022.) Whelchel and
Westmoreland met with plaintiff and determined that she did not
have a good reason for failing to get in touch with the defense
attorney as she had been instructed to do. Id. at DA 022-23,

060.

Whelchel and Westmoreland then met with Moore to discuss their
concerns about plaintiff. Id. at DA 023, 060. As a result,
plaintiff's promotion was placed on hold. Id. at DA 006.
Around the same time in December, the court coordinator for
the court to which plaintiff was assigned again complained that

6

plaintiff was not properly handling her cases, which was causing
delays. Doc. 31 at DA 023. The coordinator was having to email
plaintiff to remind her of things that needed to be done on her
cases, something she had not ever regularly had to do with any
other prosecutor. Id. at DA 073.
In early January 2017, plaintiff was sitting second chair
with a new prosecutor in a case where the judge granted a motion
to suppress evidence in a DWI case. Doc. 20 at DA 017. Plaintiff
failed to work up the case and to sufficiently assist the new
prosecutor. Id. at DA 017-18. At that point, Whelchel determined
that plaintiff was not going to be able to do what was expected.
Id. at DA 018, 020; Doc. 31 at DA 023. Whelchel and Westmoreland
again discussed plaintiff's job performance with Moore and he
concurred with their decision not to promote plaintiff. Doc. 20
at DA 009-010.

So did the District Attorney. Doc. 31 at DA 001.

Plaintiff voluntarily resigned on January 18, 2017. Id. at DA
204.
V.

Analysis
To establish a prima facie case of race discrimination,
plaintiff must show that:

(1) she was not promoted;

qualified for the position she sought;

(3)

(2) she was

she fell within a

protected class at the time of the failure to promote; and (4)

7

defendant either gave the promotion to someone outside the
protected class or otherwise failed to promote plaintiff because
of her race. Autry v. Fort Bend Indep. Sch. Dist., 704 F.3d 344,
346-47 (5th Cir. 2013). Once plaintiff has made a prima facie
case, defendant has the burden of producing a legitimate,
nondiscriminatory reason for the adverse employment action. Id.;
Parker v. State of La. Dept. of Educ. Special Sch. Dist., 323 F.
App'x 321, 327 (5th Cir. 2009). If defendant produces evidence
that, taken as true, would permit the conclusion that there was a
nondiscriminatory reason for the failure to promote plaintiff,
she must then offer sufficient evidence to create a genuine issue
of material fact that defendant's reason was pretext for racebased discrimination. Price v. Federal Express Corp., 283 F.3d
715, 720

(5th Cir. 2002). Specifically,

substantiate [her]

"plaintiff must

claim of pretext through evidence

demonstrating that discrimination lay at the heart of the
employer's decision." Id. To carry this burden, plaintiff must
produce substantial evidence to rebut each nondiscriminatory
reason articulated by defendant. Burton v. Freescale
Semiconductor, Inc,, 798 F.3d 222, 233

(5th Cir. 2015); Laxton v,

Gap, Inc., 333 F.3d 572, 578 (5th Cir. 2003). Alternatively,
plaintiff can produce evidence to show that she was clearly
better qualified than the person selected for the position.

8

Churchill v. Texas Dept. of Crim. Justice, 539 F. App'x 315, 318
(5th Cir. 2013); Price, 283 F.3d at 723

(showing that candidates

are similarly qualified or that one is merely better qualified
does not establish pretext) .
As the Fifth Circuit has explained:
If the plaintiff can show.the employer's asserted
justification is false, this showing, coupled with a
prima facie case, may permit the trier of fact to
conclude that the employer discriminated against the
plaintiff without additional evidence. Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148, 210
s. Ct. 2097, 147 L. Ed, 2d 105 (2000). However, such a
showing will not always be enough to prevent summary
judgment, because there will be cases where a plaintiff
has both established a prima f acie case and set forth
sufficient evidence to reject the defendant's
explanation, yet "no rational factfinder could conclude
that the action was discriminatory," Id. Whether
summary judgment is appropriate depends on numerous
factors, including "the strength of the plaintiff's
prima facie case, the probative value of the proof that
the employer's explanation is false, and any other
evidence that supports the employer's case and that
properly may be considered." Id. at 148-49, 120 s. Ct.
2097.
Price, 283 F.3d at 720,
Substantive analysis of claims under Title VII and the Texas
Labor Code is the same. Wallace v. Methodist Hosp. Sys., 271 F.3d
212, 219 n.10

(5th Cir. 2001); Estes v. Thrift Town, No, 3:17-CV-

1968-K-BK, 2018 WL 1157787, at *1 n.l
adopted, 2018 WL 1122204

(N.D. Tex. Feb. 7, 2018),

(N.D. Tex, Mar. 1, 2018). And, as the

Supreme Court of Texas has recently determined, failure of
plaintiff to prove the prima facie elements of a discrimination
9

claim deprives the court of jurisdiction of her state law claim.
Alamo Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d 755, 784
(Tex. 2018). That is, the Labor Code only waives immunity from
suit when the plaintiff actually states a claim for conduct that
would violate the Texas Commission on Human Rights Act. Id. at
783.
Here, defendant says that plaintiff cannot establish that
she was qualified for the position she sought. The job
qualifications for Attorney II Exempt Grade 73 include as minimum
requirements:
Prior experience in the relevant area of law is
preferred. Basic knowledge and ability to apply the
applicable laws and procedures is essential. Ability to
work efficiently and effectively in high-pressure
situations and ability to communicate effectively is
required. Attorney is responsible for working in a
cooperative manner with support staff and
investigators.
Other requirements: Incumbent must have the ability to
work well with others.

Doc. 20 at DA 208. For the reasons explained by plaintiff's
supervisors, she was not qualified for promotion and was not
promoted. Id. at DA 013-017, 025-027. That plaintiff may have
been more experienced than others, as she alleges, see, e.g.,
Doc. 8 , , 10, 17, 18; Doc. 43 at PA 106 , , 8, 11, or received

10

satisfactory performance evaluations• of "meets expectations,"
see, e.g., Doc. 20 at DA 021-022; Doc. 43 at PA 10, does not
equate to superior qualifications. Nichols v. Loral Vought Sys.
Coro., 81 F.3d 38, 42
5 F.3d 955, 959

(5th Cir. 1996); Bodenheimer v. PPG Indus.,

(5th Cir. 1993). Her conclusory, self-serving

affidavit is insufficient to raise a genuine fact issue for
trial. DIRECTV, Inc. v. Budden, 420 F.3d 521, 531 & n.49

(5th

Cir. 2005); Solorzano v. Shell Chem. Co., 254 F.3d 1082, 2001 WL
564154, at *7

(5th Cir. 2001).

As defendant notes, when the same actor both hires and makes
decisions concerning promotion, the •same actor" inference
creates a presumption that no discriminatory motive was involved
in the decision-making. Spears v. Patterson UTI Drilling Co., 337
F. App'x 416, 421-22
82 F.3d 651, 658

(5th Cir. 2009); Brown v. CSC Logic, Inc.,

(5th Cir. 1996). In this case, the same District

Attorney made hiring, promotion, and firing decisions. Doc. 20 at
DA 001-003. And, the same actor promoted others of plaintiff's
race. Id. at DA 003, 017-018, 030. Likewise, persons of other
races whose performance was not satisfactory were not promoted.
Id. at DA 027-028.

5

As one prosecutor testified, the performance evaluations were tied to raises, not necessarily
promotions. Doc. 43 at PA 62.
11

Plaintiff counters that the same actor doctrine is
inapplicable because the person who hired her did not make the
decision not to promote her. Doc. 42 at 4. However, the evidence
shows that the same actor did make those decisions. Doc. 20 at DA
001-003. Plaintiff also refers to the •cat's paw• theory pursuant
to which the discriminatory animus of a manager can be imputed to
the decision-maker if the decision-maker acted as a rubber stamp,
or cat's paw, for the manager. Laxton, 333 F.3d at 584. The cat's
paw theory only applies, however, if the plaintiff establishes
that (1) a co-worker exhibited discriminatory animus, and (2)
that same co-worker possessed leverage or exerted influence over
the decision-maker so as to cause the decision to be made.
Roberson v. Alltel Info. Servs., 373 F.3d 647,

653

(5th Cir.

2004). The plaintiff's subjective opinion that her supervisor
discriminated against her is not enough to create a genuine issue
of material fact. Id. at 654; Keller v. Coastal Bend College, 629
F. App'x 596, 599 (5th Cir. 2016). Where, as here, plaintiff is
merely disputing a performance assessment, she has not
demonstrated a fact issue as to animus. Sandstad v. CB Richard
Ellis, Inc., 309 F.3d 893, 899 (5th Cir. 2002). Accordingly, the
cat's paw analysis does not apply and the same actor inference
creates a presumption that no discrimination was involved in the
failure to promote plaintiff.

12

Plaintiff argues that the reasons given for the failure to
promote her are pretext for discrimination. In particular, she
refers to alleged self-contradictory statements of Whelchel and
testimony contradicted by other witnesses and to the alleged
timing of events. The record does not support these allegations.
The timing of events is as recited, supra. Plaintiff tries to
make much of another deputy chief saying that Westmoreland
informed her that plaintiff's promotion was being reconsidered
•because of concerns from recent issues that had arisen." Doc. 43
at PA 100.2. Of course, after recommending her for promotion,
Westmoreland and Whelchel learned that plaintiff had not followed
up with the defense attorney as instructed and they learned of
continuing problems in the court where she was assigned. Doc. 31
at DA 022-23. As for the allegation that Whelchel's story changed
at different times, the record reflects that defendant
supplemented its summary judgment evidence in response to an
affidavit plaintiff initially filed in response to the summary
judgment motion. 6 Doc. 26, Ex. E. This is not a case where
different reasons were given at different times thus leading to
an inference of pretext. The court further notes that the record
reflects that defendant did not always document negative

'Defendant filed its motion for summary judgment on May 22, 2018. Docs. 18, 19, 20. Although
plaintiff did not file a proper motion pursuant to Fed. R. Civ. P. 56(d), the court granted plaintiff a
lengthy extension of time in which to file her response. Doc. 27.

13

performance issues, but instead offered encouragement to its
employees whenever possible. See, e.g., Doc. 31 at DA 022, That
this was defendant's practice does not support the contention
that defendant is now fabricating complaints about plaintiff's
performance. That former co-workers said nice things about
plaintiff does not show that she was discriminated against. That
particular documents may not have been produced as plaintiff
would have wished is not evidence of discrimination.' Nor is the
fact that defendant apparently gave plaintiff numerous chances to
improve.' In sum, the record simply does not support plaintiff's
contention that she was the subject of discrimination and no
rational factfinder could reach that conclusion.
VI.

Order
The court ORDERS that defendant's motion for summary
judgment be, and is hereby, granted; that plaintiff take nothing

'It is not clear what pertinence the documents have to the summary judgment motion. Plaintiff
does not give a citation to such documents being in the record. Doe. 42 at 12-13. Plaintiff further
complains that defendant's EEOC response was not reviewed by Whelchel. Id. at 13. The pm1inence to
the motion is not clear.

'Plaintiff's argument is that if she was as awful as she is described in the numerous affidavits
supporting defendant's motion, she would have been terminated long before she was given an
opportunity to resign. She has not cited any authority to support the proposition that defendant's
remarkable forbearance should be held against it.

14

on her claims against defendant; and that such claims be, and are
hereby, dismissed.
SIGNED September 7, 2018.

15