Campbell v. Texas Department Of Criminal Justice

Filing 44

MEMORANDUM AND RECOMMENDATION entered. The Court RECOMMENDS that the Motion for Summary Judgment [Dkt. 32] be GRANTED, and this suit be DISMISSED. Objections to M&R due by 9/19/2019. (Signed by Magistrate Judge Andrew M Edison) Parties notified. (wbostic, 4)

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United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
GALVESTON DIVISION
LJUBICA CAMPBELL
Plaintiff.
VS.
TEXAS DEPARTMENT OF
CRIMINAL JUSTICE
Defendant.

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September 05, 2019
David J. Bradley, Clerk

CIVIL ACTION NO. 3:18–CV–00003

MEMORANDUM AND RECOMMEDATION
Before me is Defendant’s Motion for Summary Judgment (Dkt. 32), which was filed
on July 22, 2019. Plaintiff Ljubica Campbell’s (“Campbell”) response was originally due
on August 12, 2019. In lieu of filing a response, Campbell sought an extension. See Dkts.
34, 36, 37. Over the objection of Defendant Texas Department of Criminal Justice
(“TDCJ”), I extended Campbell’s response deadline until August 22, 2019. See Dkt. 40.
On August 22, Campbell sought another extension until August 23, 2019. See Dkt. 41. In
an attempt to be incredibly accommodating, I granted Campbell one final extension until
August 24, 2019—a day longer than she even requested. See Dkt. 43. The August 24
deadline has come and gone, and Campbell still has not filed a response. Accordingly, I
treat Defendant’s Motion for Summary Judgment as unopposed; and, for the reasons
articulated below, I RECOMMEND that the motion be GRANTED.

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BACKGROUND
Campbell is a former correctional officer who worked for TDCJ at its Hospital
Facility in Galveston, Texas, from 2006 until she was terminated in 2016. As a correctional
officer, Campbell’s job was to provide security for hospital staff and escort inmates to
medical appointments.
During her tenure with TDCJ, Campbell filed numerous complaints with the TDCJ
Employee Relations Office about other TDCJ employees. These complaints ranged from
accusing certain coworkers of creating a hostile work environment to accusing other
coworkers of pushing her in an elevator. However, Campbell was not the only person
filing complaints.
Between March 2013 and February 2016, numerous individuals complained to
TDCJ about Campbell’s behavior, including multiple nurses, a medical doctor, and even a
chaplain. Pertinent here, the TDCJ investigated the complaints, and several resulted in
disciplinary convictions against her.
In January 2015, Campbell filed a charge with the Equal Employment Opportunity
Commission (“EEOC”).1 She alleged discrimination and retaliation, referencing the many
incidents underlying her various complaints to the TDCJ Employee Relations Office. Prior
to the EEOC completing its review, Campbell was involved in a verbal altercation with a
superior officer. After a thorough investigation of the altercation, Campbell was found
guilty of instigating and participating in a verbal altercation with her superior officer.
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Campbell actually filed her first EEOC charge in late 2013. Although she received a right to sue
letter in May 2014, Campbell did not file suit.
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Based on this determination, coupled with her long disciplinary history, TDCJ terminated
Campbell’s employment in July 2016. After her termination, Campbell supplemented her
EEOC charge to include the facts surrounding her recent termination.

Thereafter,

Campbell received a right to sue letter and filed suit.
In this lawsuit, Campbell seeks money damages and alleges the following claims:
violations of her constitutional rights to substantive and procedural due process under 42
U.S.C. § 1983 (“Section 1983”); race (Caucasian), national origin (Macedonian), and sex
(female) discrimination under 42 U.S.C. § 2000e-2, et seq. (“Title VII”); and retaliation
under Title VII. TDCJ has moved for summary judgment as to each claim.
SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate when “there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” FED. R. CIV. P.
56(a). A genuine dispute of material fact does not exist unless “the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Burell v. Prudential Ins.
Co. of Am., 820 F.3d 132, 136 (5th Cir. 2016) (citation omitted). “The moving party . . .
bears the initial responsibility of informing the district court of the basis for its motion.”
Brandon v. Sage Corp., 808 F.3d 266, 269–70 (5th Cir. 2015) (citation omitted). If the
burden of production at trial “ultimately rests on the nonmovant, the movant must merely
demonstrate an absence of evidentiary support in the record for the nonmovant’s case.”
Lyles v. Medtronic Sofamor Danek, USA, Inc., 871 F.3d 305, 310–11 (5th Cir. 2017). Once
a party “meets the initial burden of demonstrating that there exists no genuine issue of
material fact for trial, the burden shifts to the non-movant to produce evidence of the
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existence of such an issue for trial.” Brandon, 808 F.3d at 270. The party opposing
summary judgment “must do more than simply show that there is some metaphysical doubt
as to the material facts. [It] must go beyond the pleadings and come forward with specific
facts indicating a genuine issue for trial to avoid summary judgment.” Id. (citations and
quotation marks omitted). “In deciding whether a fact issue exists, courts must view the
facts and draw reasonable inferences in the light most favorable to the nonmoving party.”
Rayborn v. Bossier Par. Sch. Bd., 881 F.3d 409, 414 (5th Cir. 2018) (quotation marks and
citation omitted). Importantly, “[a]lthough it is reversible error for the Court to grant a
summary judgment motion simply because the nonmovant fails to respond [as is the case
here], the Court may decide the merits of the case based on the Defendant’s Motion and
supporting evidence since Plaintiff has proffered no controverting evidence.” Daniels v.
BASF Corp., 270 F. Supp. 2d 847, 852 (S.D. Tex. 2003) (citations omitted).
DISCUSSION
I.

DUE PROCESS CLAIMS UNDER SECTION 1983
TDCJ argues that Eleventh Amendment immunity bars Campbell’s due process

claims arising under Section 1983. I agree. As this Court has explained, “the Eleventh
Amendment bars a suit for money damages against TDCJ, as a state agency, under 42
U.S.C. § 1983.” Hampton v. Brindley, No. 3:17-CV-299, 2018 WL 3609034, at *5 (S.D.
Tex. July 27, 2018) (citing Talib v. Gilley, 138 F.3d 211, 213 (5th Cir. 1998)). Thus,
Campbell’s due process claims must be dismissed.

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II.

DISCRIMINATION AND RETALIATION UNDER TITLE VII2
“Discrimination and retaliation claims asserted under Title VII . . . are analyzed

under the same rubric of analysis, the McDonnell Douglas burden-shifting framework.”
Simani v. Beechnut Acad., 740 F. App’x 445, 446 (5th Cir. 2018) (internal quotation marks
and citation omitted). See also McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–04
(1973). Under this framework, Campbell must first present a prima facie case. See, e.g.,
Daniels, 270 F. Supp. 2d at 852 (citation omitted). To establish a prima facie case of
discrimination under Title VII, Campbell “must produce evidence that she (1) is a member
of a protected class, (2) was qualified for the position that she held, (3) was subject to an

2

In Plaintiff’s First Amended Complaint, Campbell specifically included a section identifying her
Title VII claims. See Dkt. 17 at 10–12. Importantly, she only specifically asserts discrimination
and retaliation claims. I do not find any indication that Campbell also asserted a hostile work
environment claim. TDCJ, however, has also sought summary judgment on Campbell’s purported
hostile work environment claim. In an abundance of caution, I summarily address this claim.
“To state a hostile work environment claim under Title VII, the plaintiff must show that: (1) the
victim belongs to a protected group; (2) the victim was subjected to unwelcome harassment; (3)
the harassment was based on a protected characteristic; (4) the harassment affected a term,
condition, or privilege of employment; and (5) the victim’s employer knew or should have known
of the harassment and failed to take prompt remedial action.” E.E.O.C. v. WC&M Enters., Inc.,
496 F.3d 393, 399 (5th Cir. 2007) (citation omitted). TDCJ attacks the third and fourth element.
See Dkt. 32 at 20–23. I address only the fourth element.
As argued by TDCJ, Campbell’s “‘workplace’ was a prison containing inmates from all over
Texas, with all the ordinary tribulations associated with that environment” and the “alleged
harassment [that Campbell was subjected to] consists chiefly of offensive utterances.” Dkt. 32 at
22–23. The Fifth Circuit has clearly “held . . . that simple teasing, offhand comments, and isolated
incidents (unless extremely serious) will not amount to discriminatory changes in the terms and
conditions of employment.” Carrera v. Commercial Coating Servs. Int’l, Ltd., 422 F. App’x 334,
338 (5th Cir. 2011) (internal quotation marks and citations omitted) (collecting cases). Based on
the record before me, I find that Campbell has not presented evidence that any purported
harassment affected a term, condition, or privilege of her employment. Therefore, to the extent
that Campbell has pled a hostile work environment claim, it too must fail as a matter of law.

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adverse employment action, and (4) was replaced by someone outside of her protected class
or treated less favorably than other similarity-situated employees who were not in her
protected class.” Harville v. City of Hous., Miss., ---F.3d.---, 2019 WL 3851738, at *3 (5th
Cir. Aug. 16, 2019). To establish a prima facie case of retaliation, Campbell “must show
that (1) she engaged in a Title VII protected activity; (2) she was subject to an adverse
employment action; and (3) there was a but-for causal connection between her employment
in the protected activity and the adverse employment action.” Id. at *6. “If [Campbell]
establishes a prima facie case, the burden shifts to [TDCJ] to produce evidence showing
the termination was justified by a legitimate, non-discriminatory reason. If [TDCJ] can do
so, the burden shifts back to [Campbell] to offer sufficient evidence to create an issue of
material fact that the reason is pretextual.” Simani, 740 F. App’x at 446 (citation omitted).
“In conducting a pretext analysis, the court does not engage in second-guessing of
[TDCJ’s] business decisions.”

Roberson-King v. La. Workforce Comm’n, Office of

Workforce Dev., 904 F.3d 377, 380–81 (5th Cir. 2018) (internal quotation marks and
citation omitted).
In its Motion for Summary Judgment, TDCJ argues that Campbell cannot establish
a prima facie discrimination or retaliation claim. TDCJ goes on to offer its reasoning for
the various actions it took regarding Campbell’s employment before arguing Campbell
cannot show that such reasons were mere pretext. For the purpose of this decision, I assume
that Campbell has established a prima facie case and focus on whether TDCJ has offered
legitimate, non-discriminatory reasons for its employment decisions and whether Campbell
has shown those reasons are mere pretext.
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To be clear, Campbell has identified two types of adverse employment actions that
TDCJ purportedly subjected her to: disciplinary convictions and, ultimately, her
termination.

Regarding these employment actions, TDCJ has submitted summary

judgment evidence supporting its explanation that:
Plaintiff violated TDCJ’s rules of conduct for correctional officers. For each
violation, a first official made an accusation, a second official investigated,
and a third official determined guilt and discipline. Whenever TDCJ
imposed discipline, Plaintiff also had a three-step grievance process to appeal
the imposition. Plaintiff’s final rule violation resulted in the termination of
her employment.
Dkt. 32 at 26 (internal footnotes and record citations omitted). In my view, TDCJ has offered

legitimate, non-discriminatory reasons for Campbell’s disciplinary convictions and
termination. Thus, the burden shifts to Campbell “to establish that the legitimate reasons
offered by [TDCJ] were not the true reasons, but were instead pretexts for discrimination
[and retaliation].” Daniels, 270 F. Supp. 2d at 852–53 (citation omitted).
As explained above, Campbell failed to file a response to the Motion for Summary
Judgment, presenting no evidence or arguments indicating that TDCJ’s reasons are mere
pretext. Therefore, Campbell’s discrimination and retaliation claims must fail as a matter
of law. See, e.g., Simmons v. Rothe Dev., Inc., 952 F. Supp. 486, 490–92 (S.D. Tex. 1997)
(granting summary judgment on several Title VII claims, in part, because the plaintiff did
not submit a summary judgment response and, therefore, failed to create a fact issue on the
issue of pretext).

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CONCLUSION
For the reasons stated above, I RECOMMEND that the Motion for Summary
Judgment (Dkt. 32) be GRANTED, and this suit be DISMISSED.
The Clerk shall provide copies of this Memorandum and Recommendation to the
respective parties who have fourteen days from the receipt thereof to file written objections
pursuant to Federal Rule of Civil Procedure 72(b) and General Order 2002–13. Failure to
file written objections within the time period mentioned shall bar an aggrieved party from
attacking the factual findings and legal conclusions on appeal.
SIGNED at Galveston, Texas, this ___ day of September, 2019.

____________________________________
ANDREW M. EDISON
UNITED STATES MAGISTRATE JUDGE

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