Zamora et al v. City Of Houston et al

Filing 212

MEMORANDUM AND ORDER DENIED 210 MOTION to Strike 209 Surreply to Motion, 202 MOTION for Summary Judgment (Signed by Judge Nancy F. Atlas) Parties notified.(sashabranner, )

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

CHRISTOPHER ZAMORA,
Plaintiff,
v.
CITY OF HOUSTON,
Defendant.

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CIVIL ACTION NO. 4:07-4510

MEMORANDUM AND ORDER
This Title VII retaliation claim is before the Court on remand from the Fifth
Circuit. After the Court permitted Plaintiff Christopher Zamora to file a First
Supplement to Plaintiff’s Second Amended Complaint [Doc. # 184] (“Supplemental
Complaint”), Defendant City of Houston filed a Motion for Partial Summary
Judgment [Doc. # 202] (“Motion”). Plaintiff Zamora responded [Doc. # 204], the
City filed a Reply [Doc. # 208], and Zamora filed a Surreply [Doc. # 209].1 The
Motion is ripe for decision. Having considered the parties’ briefing, the applicable
legal authorities, and all matters of record, the Court concludes that the City’s Motion
should be denied.

1

The City filed a Motion to Strike Plaintiff’s Surreply [Doc. # 210] urging that the
Surreply be stricken because it was unauthorized and untimely filed. This motion
also will be denied.

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I.

BACKGROUND
Plaintiff Zamora has been an officer with the Houston Police Department

(“HPD”) since 2005. Zamora alleges that, in early 2008, he was forced by his HPD
superiors to transfer out of the prestigious Crime Reduction Unit (“CRU”) and to
accept a less desirable position as a patrol officer. Zamora claims that the officials
who forced him to transfer were retaliating against him because in December 2007 his
father, Manuel Zamora, who was then a Lieutenant with HPD, filed a Charge of
Discrimination with the EEOC and then filed the instant lawsuit against HPD.
Plaintiff filed his own EEOC charge in May 2008, after his transfer out of CRU, and
joined this lawsuit in June 2008.
In 2010, based on Fifth Circuit law at the time, this Court held that Zamora
could not show a prima facie case of retaliation under Title VII because his claim
relied on his father’s “protected activity” (in particular, his father’s filing of an EEOC
Charge and the instant lawsuit) rather than Zamora’s own protected activity. Based
on an intervening change in the law,2 the Fifth Circuit remanded Zamora’s retaliation
claim to this Court [Doc. # 147]. This Court then denied a renewed motion for
summary judgment from the City [Doc. # 160], and granted in part Zamora’s motion
to supplement his complaint [Doc. # 183].
2

Thompson v. N. Am. Stainless, LP, 131 S. Ct. 863 (2011).

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2

Plaintiff’s Supplemental Complaint [Doc. # 184], filed on December 7, 2011,
added new alleged adverse employment actions, including a “ten-day temporary
suspension”3 and a denial of Zamora’s request to transfer to the Narcotics Division.
The City now moves for partial summary judgment, arguing that no summary
judgment evidence supports these new claims.
II.

SUMMARY JUDGMENT STANDARD
Rule 56 of the Federal Rules of Civil Procedure mandates the entry of summary

judgment, after adequate time for discovery and upon motion, against a party who
fails to make a sufficient showing of the existence of an element essential to the
party’s case, and on which that party will bear the burden at trial.4 “The court shall
grant summary judgment if the movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.”5

3

The term “ten-day temporary suspension,” while appearing redundant, is the term
used by HPD for the discipline Zamora received. See Memorandum from Chief C.
McClelland, dated Nov. 15, 2010 (Exhibit 13 to Motion) (“McClelland
Memorandum”). For simplicity’s sake, the Court refers to this discipline as a
“suspension.”

4

Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Little v. Liquid Air Corp., 37 F.3d
1069, 1075 (5th Cir. 1994) (en banc); see also Baton Rouge Oil and Chem. Workers
Union v. ExxonMobil Corp., 289 F.3d 373, 375 (5th Cir. 2002).

5

FED. R. CIV. P. 56(a); Celotex Corp., 477 U.S. at 322–23; Weaver v. CCA Indus., Inc.,
529 F.3d 335, 339 (5th Cir. 2008).

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For summary judgment, the initial burden falls on the movant to identify areas
essential to the non-movant’s claim in which there is an “absence of a genuine issue
of material fact.”6 The moving party, however, need not negate the elements of the
non-movant’s case.7 The moving party may meet its burden by pointing out “the
absence of evidence supporting the nonmoving party’s case.”8
If the moving party meets its initial burden, the non-movant must go beyond the
pleadings and designate specific facts showing that there is a genuine issue of material
fact for trial.9 “An issue is material if its resolution could affect the outcome of the
action. A dispute as to a material fact is genuine if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.”10
In deciding whether a genuine and material fact issue has been created, the facts
and inferences to be drawn from them must be reviewed in the light most favorable

6

Lincoln Gen. Ins. Co. v. Reyna, 401 F.3d 347, 349 (5th Cir. 2005).

7

See Boudreaux v. Swift Transp. Co., 402 F.3d 536, 540 (5th Cir. 2005).

8

Duffy v. Leading Edge Products, Inc., 44 F.3d 308, 312 (5th Cir. 1995) (internal
citations and quotations omitted).

9

Littlefield v. Forney Indep. Sch. Dist., 268 F.3d 275, 282 (5th Cir. 2001) (internal
citation omitted).

10

DIRECT TV Inc. v. Robson, 420 F.3d 532, 536 (5th Cir. 2006) (internal citations and
quotation marks omitted).

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to the nonmoving party.11 However, factual controversies are resolved in favor of the
non-movant “only ‘when both parties have submitted evidence of contradictory
facts.’”12 The non-movant’s burden is not met by mere reliance on the allegations or
denials in the non-movant’s pleadings.13 Likewise, “conclusory allegations” or
“unsubstantiated assertions” do not meet the non-movant’s burden.14 Instead, the
nonmoving party must present specific facts which show “the existence of a genuine
issue concerning every essential component of its case.”15 In the absence of any proof,
the court will not assume that the non-movant could or would prove the necessary
facts.16

11

Reaves Brokerage Co. v. Sunbelt Fruit & Vegetable Co., 336 F.3d 410, 412 (5th Cir.
2003).

12

Alexander v. Eeds, 392 F.3d 138, 142 (5th Cir. 2004) (quoting Olabisiomotosho v.
City of Houston, 185 F.3d 521, 525 (5th Cir. 1999)).

13

See Diamond Offshore Co. v. A&B Builders, Inc., 302 F.3d 531, 545 n.13 (5th Cir.
2002).

14

Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 399 (5th
Cir. 2008).

15

Am. Eagle Airlines, Inc. v. Air Line Pilots Ass’n, Int’l, 343 F.3d 401, 405 (5th Cir.
2003) (citation and internal quotation marks omitted).

16

Little, 37 F.3d at 1075 (citing Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888
(1990)).

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Affidavits cannot preclude summary judgment unless they contain competent
and otherwise admissible evidence.17

A party’s self-serving and unsupported

statement in an affidavit will not defeat summary judgment where the evidence in the
record is to the contrary.18
Finally, “[w]hen evidence exists in the summary judgment record but the
nonmovant fails even to refer to it in the response to the motion for summary
judgment, that evidence is not properly before the district court. Rule 56 does not
impose upon the district court a duty to sift through the record in search of evidence
to support a party’s opposition to summary judgment.”19
III.

ANALYSIS
As set forth in this Court’s prior opinions, a plaintiff can establish a prima facie

case of unlawful retaliation under Title VII by showing that (1) he engaged in a
“protected activity”; (2) an adverse employment action occurred; and (3) a causal link

17

See FED. R. CIV. P. 56(c)(4) (“An affidavit or declaration used to support or oppose
a motion must be made on personal knowledge, set out facts that would be admissible
in evidence, and show that the affiant or declarant is competent to testify on the
matters stated”); Love v. Nat’l Medical Enters., 230 F.3d 765, 776 (5th Cir. 2000);
Hunter-Reed v. City of Houston, 244 F. Supp. 2d 733, 745 (S.D. Tex. 2003).

18

See In re Hinsely, 201 F.3d 638, 643 (5th Cir. 2000).

19

Malacara v. Garber, 353 F.3d 393, 405 (5th Cir. 2003) (internal citations and
quotations omitted).

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existed between the protected activity and the adverse employment action.20 If
plaintiff establishes a prima facie case, the employer must then articulate a legitimate,
non-retaliatory reason for its employment action.21 Once the employer does so, the
burden shifts back to the plaintiff to demonstrate that the protected activity was a “but
for” cause of the adverse employment action.22
The City moves for summary judgment on two adverse employment actions
added in Plaintiff’s Supplemental Complaint: Zamora’s ten-day suspension on
November 15, 2010; and the denial of Zamora’s requested transfer to Narcotics, which
Zamora applied for in the Fall of 2010. The City also argues that Zamora cannot
establish a causal connection between the protected activity and the adverse
employment action, because 26 months elapsed between them.

Finally, the City

argues that it has provided legitimate, non-retaliatory reasons for the alleged adverse
employment actions.
A.

Ten-Day Suspension
On November 15, 2010, HPD Chief McClelland issued Zamora a ten-day

20

Hernandez v. Yellow Transp., Inc., 670 F.3d 644, 657 (5th Cir. 2012).

21

Id.

22

Id.

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suspension letter.23 Zamora alleges that this suspension was retaliatory.
Zamora’s suspension was based on a finding that he had been untruthful in an
administrative statement he submitted to HPD’s Internal Affairs Division (“IAD”).
On May 21, 2010, Lieutenant Manuel Zamora, father of Plaintiff Christopher Zamora
and an original Plaintiff in this suit, filed a complaint with IAD. Manuel Zamora
alleged that multiple persons within HPD had harassed and retaliated against
Christopher Zamora because Manuel Zamora had filed the instant lawsuit against
HPD.24 Sergeant Dick Bogaard of IAD investigated the complaint and interviewed
more than twenty officers, including Christopher Zamora, who provided a statement
on June 15, 2010.25 The statement provided responses to a series of written questions,
presumably posed to Zamora by Bogaard. Zamora’s statement, like Manuel Zamora’s
IAD complaint, pertained to Christopher Zamora’s transfer in 2008 out of the CRU,
in other words, the events that form the basis of his retaliation claim before this Court.
The IAD then, based on Zamora’s statement, initiated a charge against him for

23

McClelland Memorandum (Exhibit 13 to Motion).

24

Memorandum from Lt. T. M. Spjut, dated Aug. 23, 2010 (Exhibit 9 to Motion)
(“Spjut Memorandum”), at 1. Manuel Zamora complained that Executive Assistant
Chief Kirk Munden, Captain Michael Graham, Lieutenant Stephen Casko, and
Sergeant Mark Myskowski committed various infractions including perjury,
harassment, and retaliation. Id.

25

Memorandum from C. Zamora, dated June 15, 2010 (Exhibit 4 to Motion).

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untruthfulness. On August 23, 2010, relying on Sergeant Bogaard’s investigation,
HPD Lieutenant Spjut found “sufficient evidence to prove an allegation of
Untruthfulness” against Zamora, based in part on inconsistencies between Zamora’s
statements and those of other officers.26

Chief McClelland relied upon this

investigation when suspending Zamora.
Zamora appealed the suspension. On April 28, 2011, an independent Hearing
Examiner overturned Zamora’s suspension for untruthfulness:
To find untruthfulness on [the instances relied upon by Chief
McClelland] after two years recollection is quite a stretch. Officer
Zamora may be defensive, glib and perceive the world differently than
his superiors. However this does not prove he is untruthful or
intentionally, knowingly or recklessly misrepresented facts or misleads
others. The evidence is not there to prove this case. He perceived
certain circumstances and the city perceived other circumstances. If
Officer Zamora cannot perform his duties that should be addressed but
he should not be disciplined for the [cited statements in] his
administrative statement when he was trying to give full information
from two years ago without notes.27

26

Spjut Memorandum, at 33 (emphasis original). The others interviewed by IAD in
connection with the charge of untruthfulness included Zamora’s former supervisors
Casko, Myskowski, and Graham, all of whom had been involved in the 2008 events.

27

Award, In the Matter of the 10 Day Temporary Suspension of Christopher Zamora
and the City of Houston, dated April 28, 2011 (Exhibit 6 to Response) (“Award”), at
8.

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The Hearing Examiner found that the City had not proven that Zamora was untruthful
and that Zamora should be made whole.28
The City concedes that Zamora has satisfied the first two elements of a prima
facie case, but argues that he cannot establish a causal connection between the
protected activity in this case, i.e., Manuel Zamora’s EEOC Charge and this lawsuit
(both filed in 2007), and Plaintiff Zamora’s 2010 suspension. The decision to suspend
Plaintiff Zamora was made by Chief McClelland, as recommended by Lieutenant
Spjut and others in the hierarchy for recommendation of discipline, and based on
investigation by Sergeant Bogaard. In deposition, Zamora testified that he did not
believe that the HPD officials who meted out his discipline, including Chief
McClelland and numerous other HPD personnel, personally had retaliated against
him.29 The City therefore argues that Zamora has failed to show a causal link between
the suspension and his father’s EEOC complaint.
Zamora invokes the “cat’s paw” theory, arguing that he has presented sufficient
evidence of a causal connection because HPD’s investigators and decisionmakers
28

Id.

29

See Deposition of Christopher Zamora (Exhibit 17 to Motion), at 197-208 (Zamora
testified that he did not believe that McClelland, Captain Zera, Chief Montalvo, or
others had retaliated against him). Zamora also testified that he did not believe that
Lieutenant Spjut had retaliated against him, and that he did not know Spjut. Id. at
208. Zamora apparently was not asked whether he believed Bogaard, the
investigating officer, had retaliated against him.

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were directly influenced by the statements submitted to them by Zamora’s former
supervisors, who allegedly retaliated against him in 2008 and provided IAD with
statements regarding the contested 2008 events. Under the cat’s paw theory, Zamora
must show that those with retaliatory animus against him “‘possessed leverage, or
exerted influence, over the titular decisionmaker.’”30

Plaintiff must provide

evidence—direct or circumstantial—that the actions of those with retaliatory animus
were a “proximate cause” of the adverse employment action.31

30

Hernandez, 670 F.3d at 659 (quoting Roberson v. Alltel Info. Servs., 373 F.3d 647,
653 (5th Cir. 2004) and citing Staub v. Proctor Hosp., 131 S. Ct. 1186 (2011)). See
Gee v. Principi, 289 F.3d 342, 346 (5th Cir. 2002); Long v. Eastfield College, 88 F.3d
300, 307 (5th Cir. 1996).

31

Staub, 131 S. Ct. at 1192 (“Proximate cause requires only some direct relation
between the injury asserted and the injurious conduct alleged, and excludes only those
links that are too remote, purely contingent, or indirect.”) (internal citation, quotation
marks, and alteration omitted). Although Staub construed the Uniformed Services
Employment and Reemployment Rights Act of 1994, the Court noted that the relevant
statutory language was “very similar to Title VII,” id. at 1191, and courts in the Fifth
Circuit subsequently have applied Staub’s holding to Title VII cases, including
retaliation claims. See Gollas v. Univ. Of Tex. Health Sci. Ctr. at Houston, 425 F.
App’x 318, 326 (5th Cir. 2011); Baldwin v. Holder, 2011 WL 2078614, *11 (S.D.
Tex. May 26, 2011) (Ellison, J.). Fifth Circuit authority prior to Staub had required
a showing that the decisionmaker had merely “rubberstamped” the recommendation
made by persons with animus against the plaintiff, and had provided that the causal
link could be broken by an “independent investigation” into the reasons for the
adverse employment action. See Mato v. Baldauf, 267 F.3d 444, 450 (5th Cir. 2001).
However, the Staub decision rejected such a “hard and fast” rule, holding that an
independent investigation does not necessarily break the causal link. Staub, 131 S.
Ct. at 1193.

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The Court holds that, at this stage of the litigation and drawing all inferences
in favor of Plaintiff, the nonmoving party, Defendant has not shown that there is no
genuine issue of material fact as to causation. The causation question before the Court
is whether Bogaard and Spjut, and through them, McClelland, were influenced by
those who allegedly had retaliatory animus against Zamora (primarily Casko,
Myskowski, and Graham).
Although Zamora has provided no direct evidence showing that McClelland,
Bogaard and Spjut were influenced by those with retaliatory animus, there is sufficient
circumstantial evidence to demonstrate a genuine issue of material fact on this issue.
First, the discipline against Zamora involved the same set of facts as those underlying
his retaliation claim before this Court. As stated above, the decision to initiate
discipline proceedings against Zamora and to suspend him grew from Manuel
Zamora’s IAD complaint, filed in 2010. The 2010 IAD complaint, in turn, grew from
the Zamora’s transfer out of CRU in 2008, the very facts that serve as the basis of
Christopher Zamora’s retaliation claim before this Court. The facts and assessments
upon which Chief McClelland purported to rely to discipline Zamora pertained to
events that occurred in the CRU in the months leading up to Zamora’s transfer out of
that unit in May 2008, which transfer was his original claimed adverse employment
action. In other words, the underlying facts provide a strong connection between this

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lawsuit (Zamora’s protected activity) and the suspension against him. Furthermore,
in 2010, this case was being actively litigated, with discovery that included multiple
depositions of HPD personnel. The dispute between the parties was a raw wound, as
evidenced by Manuel Zamora’s 2010 IAD complaint, which may well have further
aggravated the tension among Plaintiff and other HPD officers. Given this backdrop,
the absence of direct evidence showing influence is not fatal to Zamora’s prima facie
case.32
Moreover, Zamora has argued and presented evidence that the charges against
him were thin; they were based on four minor discrepancies (or differences of
opinion) between Zamora’s statements and the recollections of others.33 For example,
McClelland disciplined Zamora for his statement that he “had no notice” as to what
would be discussed at the meeting with his superiors on March 7, 2008, based on the

32

The City correctly points out that many statements were part of the IAD record, and
not merely those of Myskowski, Casko, and Graham. However, the fact that others
were interviewed is insufficient to demonstrate the absence of a genuine factual issue,
because an independent investigation alone does not break the chain of connection.
See Staub, 113 S. Ct. at 1193. In addition, the burden to establish the “causal link”
element of a prima facie case is much less onerous than the standard for proving
“but-for” causation required for the determination of the ultimate issue of retaliation.
Sherrod v. American Airlines, Inc., 132 F.3d 1112, 1122 n.8 (5th Cir. 1998); see
Medina v. Ramsey Steel Co., 238 F.3d 674, 684 (5th Cir. 2001).

33

See McClelland Memorandum (listing reasons for discipline); Response, at 13-17.

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fact that Zamora appeared at the meeting with three binders of materials.34 The
independent Hearing Examiner noted Zamora’s explanation that, when he was
summoned to the meeting, he made his “best guess” as to the meeting’s agenda, and
that his father helped him compile the materials in the binders. She further found
“nothing” in the evidence showing that Zamora was untruthful when he stated he had
not been given notice of the meeting’s purpose.35 In fact, the Hearing Examiner, after
detailed analysis, found that the untruthfulness citation against Zamora entirely
unsupported, and overturned it. The patent weakness of all charges against Zamora
provide further circumstantial evidence of a causal connection.
Finally, Zamora has presented evidence that the discipline against him was
aggressive and damaging to his career. As Zamora points out, the City’s investigation
of the IAD complaint filed by Zamora’s father not only cleared Myskowski, Casko,
and Graham of wrongdoing, but also resulted in fresh discipline against Zamora.36
Plaintiff’s expert, Melvin Tucker, stated in deposition that untruthfulness is “usually
a zero-tolerance offense in the law enforcement community, and it is most severe

34

McClelland Memorandum, at 2.

35

Award, at 7.

36

See Deposition of Melvin Tucker (Exhibit B to Surreply), at 32 (“internal affairs
organizations in police agencies tended to investigate cases to find a way to clear the
officer as opposed to investigating to determine the truth of a matter”).

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thing that you can have alleged against you.”37 This evidence further supports a causal
connection.
The Court therefore finds a genuine issue of material fact as to whether the
protected activity in this case, which includes the filing of the instant lawsuit, was a
proximate cause of Zamora’s 2010 suspension for untruthfulness.
B.

Denial of Transfer to Narcotics Division
In the Fall of 2010, Zamora applied for a position as an investigator in HPD’s

Narcotics Division. The City states that Zamora was one of 43 officers who applied,
and one of 36 who was eligible for an interview. Twelve officers, including Zamora,
were placed on the “most ready” list because they scored 85 or higher during the
interview process.38 This “most ready” list expired in November 2011. In July and
August 2011, three officers (Williams, Nash, and Ferrer) were selected from the “most
ready” list for assignment to the Narcotics division.39 Zamora did not receive the
transfer and claims the denial was retaliatory.
As above, the City concedes the first two prima facie elements but argues that
Zamora has no evidence of a causal connection between the protected activity, i.e.,

37

Tucker Deposition (Exhibit C to Surreply), at 112.

38

See Exhibits 15 and 16 to Motion.

39

Affidavit of Lt. Jose Inocencio (Exhibit 19 to Motion), at 1.

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this lawsuit filed in 2007, and the denied 2010 transfer, because he has no evidence
that the decision-makers on the transfer were retaliating for his protected activity. In
particular, the City identifies multiple individuals involved in the selection process,40
and states that Zamora has not alleged retaliation by any of those individuals, nor that
these individuals were aware of Zamora’s protected activity.
The City provides a carefully phrased affidavit from Lieutenant Inocencio, who
was Commander of the Narcotics Division, to which Zamora sought to transfer.
Inocencio stated that “As far as I know, Officer Zamora was never taken off of the
Most Ready list.”41 This affidavit, however, does not establish that Zamora was in
fact eligible for the transfer, nor that the HPD officials who participated in the
personnel selections actually considered Zamora for the transfer.
Zamora points out that on November 15, 2010, seven days after he was notified
that he had been placed on the “most ready” list for the transfer,42 he received notice
of his ten-day suspension. Under HPD policy, because of the suspension, he was
immediately ineligible for the applied-for transfer, and any other transfer, for a period

40

Motion, at 8; Exhibit 15 to Motion, at 2.

41

Affidavit of J. Inocencio (Exhibit 19 to Motion), at 2.

42

Memorandum from R. A. Gerstner, dated Nov. 8, 2010 (Exhibit 11 to Response)
(notifying Zamora that he had been placed on “most ready” list).

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of seven years from the date of discipline, i.e., until 2017.43 Zamora thus has
presented competent summary judgment evidence that, even assuming he remained
on the “most ready” list, he effectively was removed from consideration for the
transfer to Narcotics starting on November 15, 2010. Furthermore, Zamora points to
evidence that, as of June 4, 2012, the citation for untruthfulness remains in his
departmental file, despite having been overturned by the independent Hearing
Examiner, and therefore it appears that he continues to be ineligible for transfer until
November 15, 2017.44
The facts regarding Zamora’s unsuccessful transfer application are intricately
linked with the facts regarding the charge for untruthfulness brought against Zamora,

43

HPD General Order 300-02 (Exhibit 8 to Response), at 3 (officers with a sustained
untruthfulness complaint are ineligible for transfer to Investigative Operations or
certain other divisions for a period of seven years from the date of discipline for
Category D or E violations). Zamora states that his violation was Category D.
Response, at 18. The memorandum informing Zamora that he had been placed on the
“most ready” list states, “However, if you have a pending internal affairs investigation
that may disqualify you from transferring to the Narcotics Division, then your
suitability for an investigative position will be based on the outcome of the
investigation.” Exhibit 11 to Response.

44

Affidavit of Officer C. M. Zamora [Doc. # 207], at 2 (“the November 15, 2010 10-day
temporary suspension correspondence was still contained in my file on week
beginning Monday June 4, 2012. I believe that the Defendants are punitively
punishing me for this lawsuit”). Zamora further states that HPD’s Internal Affairs
Training Manual requires that a disciplinary action against an officer be expunged
from the personnel file if the disciplinary action is overturned by an independent
Hearing Examiner. Response, at 20 (citing HPD Internal Affairs Training Manual
(Exhibit 9 to Response)).

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regarding which the Court already has found a genuine fact issue precluding summary
judgment. As held above, Zamora has presented evidence demonstrating a genuine
fact issue as to a causal connection between the protected activity in this case and his
ten-day suspension. Zamora also has presented summary judgment evidence that the
citation for untruthfulness, which he argues was bogus and retaliatory, caused the
denial of his requested transfer to Narcotics. Therefore, at this stage of the litigation,
Defendant has not demonstrated the absence of a genuine issue of material fact as to
whether there was a causal connection between the protected activity in this case and
Zamora’s denied transfer.
C.

Twenty-Six Month Gap
The City argues that Zamora cannot establish causation because more than 26

months elapsed between September 2008, when Christopher Zamora joined this
lawsuit, and the alleged adverse employment actions in November 2010.45 However,
the amount of elapsed time, without more, is not conclusive on the prima facie
element of causation. In Gee v. Prinicipi, the Fifth Circuit held that, although nearly
two years had elapsed between the plaintiff’s harassment complaint and the alleged
adverse employment action, “this time lapse alone does not entitle the [defendant] to

45

Motion, at 9 (citing Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268 (2001); Harper v.
City of Jackson Muni. Sch. Dist., 149 F. App’x 295, 303 (5th Cir. 2005)).

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summary judgment.”46 The Court further stated, “We consider time as part of our
analysis, but not in itself conclusive of our determinations of retaliation.”47 In this
case, as in Gee, Zamora alleges that he was subject to a series of adverse employment
actions spanning several years. Summary judgment is denied on this ground.
D.

The City’s Proffered Legitimate Non-Retaliatory Reason
The City argues in the alternative that, if summary judgment is not warranted

on the prima facie elements, the City nevertheless has provided a legitimate business
reason for the two challenged employment actions: First, the City states that the tenday suspension was justified because Zamora was untruthful. Second, the City states
that the denied transfer was justified because, although Zamora was on the most ready
list, only three positions were open and three other applicants were chosen based on
their performance levels. Once the City provides a non-retaliatory reason for its
actions, the burden shifts back to the plaintiff to demonstrate that the protected activity
was a “but for” cause of the adverse employment action.48

46

Gee, 289 F.3d at 342, 347 n.3.

47

Id. (internal citation and quotation marks omitted).

48

Hernandez, 670 F.3d at 657.

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Zamora has demonstrated a “conflict in substantial evidence” on these ultimate
issues of causation.49 Regarding Zamora’s ten-day suspension, there exists a conflict
in the substantial evidence concerning the actual motivation for the untruthfulness
citation, given the tenuousness of the grounds given for the citation and the ruling by
the independent Hearing Examiner overturning that discipline against Zamora, among
other factors. As for the transfer to the Narcotics Division, Zamora has presented
evidence that the vacated citation for untruthfulness disqualified him from
consideration for the position he sought.
Moreover, as Zamora points out, his claim of retaliation is strengthened by the
fact that IAD officials took the apparently unusual step of citing Christopher Zamora
for untruthfulness and recommending disciplinary action against him, rather than
merely finding that his statement failed to provide support for Manuel Zamora’s IAD
complaint. Plaintiff Zamora has demonstrated a substantial conflict in the evidence
and summary judgment is denied.
IV.

CONCLUSION
For the foregoing reasons, it is hereby

49

Id. at 658 (“Evidence is substantial if it is of such quality and weight that reasonable
and fair-minded men in the exercise of impartial judgment might reach different
conclusions.”) (internal citations and quotation marks omitted).

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ORDERED that Defendant’s Motion for Partial Summary Judgment [Doc.
# 202] is DENIED. It is further
ORDERED that Defendant’s Motion to Strike Plaintiff’s Surreply [Doc.
# 210] is DENIED.
SIGNED at Houston, Texas, this 13th day of September, 2012.

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