Simon v. Harris County Sheriff's Department et al

Filing 48

SUMMARY JUDGMENT OPINION AND ORDER granting in part and denying in part 29 MOTION for Summary Judgment. (Signed by Magistrate Judge Stephen Wm Smith) Parties notified. (jmarchand)

U N IT E D STATES DISTRICT COURT S O U T H E R N DISTRICT OF TEXAS H O U S T O N DIVISION A MON SIMON, P l a i n t i ff , vs. H ARRIS COUNTY SHERIFF'S DEPT., et al., D e fen d a n ts. § § § § § § §

C IVIL ACTION H-08-2111

S U M M A R Y JUDGMENT OPINION AND ORDER T h is civil rights case brought pursuant to 42 U. S. C . § 1983, 42 U. S. C . § 1981, and T itle VII is before the court on defendants' motion for summary judgment (Dkt. 29). The m o tio n is granted in part and denied in part. 1 B a c k gro u n d P la in tiff Amon Simon is an African-American male with a permanent form of the sk in condition pseudofolliculitis barbae (PFB). Simon joined the Harris County Sheriff' s O ffic e (HCSO) in February 2004 as a detention officer in the Harris County jail. In O c to b e r 2005, Simon graduated from the Sheriff' s Office Academy and returned to work a s a deputy at the Harris County jail. At that time, HCSO had a no-beard policy that allowed an exception if the employee c o u ld demonstrate to the satisfaction of his bureau commander that he suffered from a c o n d itio n that could only be remedied by allowing his beard to grow. In M a r c h 2006,

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The parties have consented to the jurisdiction of this magistrate judge for all purposes, including final judgment (Dkt. 10).

Sim o n began following his treating dermatologist' s recommendation to maintain a " s h a d o w " beard that resembles stubble due to his severe, chronic PFB. That same month, H C SO amended its policy to provide that an individual suffering from PFB shall be placed o n transitional duty. The policy expressly noted that transitional duty was not intended to b e permanent, and presumed that an individual with PFB will be able to shave after tr e a tm e n t. In January 2007, Simon began patrol training in District III, a predominantly m in o r ity , high crime area. Simon' s supervisor in District III was aware of his facial hair, a n d determined that his appearance was acceptable. In June 2007, Simon began working th e evening shift in District IV, the Katy area -- a primarily Caucasian suburb in which th e n -Sh e r iff Tommy Thomas lived. Soon thereafter, he was told by his supervisor that his fa c ia l hair was not in compliance with HCSO policy. Simon was placed on transitional duty on June 14, 2007. While on transitional d u ty , he was prohibited from wearing his uniform and from openly carrying his weapon; h e was also precluded working overtime, " K " time in County jails, and security-related e x tr a jobs. Plaintiff contends that he also effectively, if not procedurally, lost the

o p p o r tu n ity to be considered for promotion or new job assignments. Sim o n ' s initial transitional duty assignment was a desk job, but he was quickly tr a n sfe r r e d to the property room. Property room duties include taking out trash, sweeping

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a n d cleaning up, and performing other manual labor. On August 23, 2007, Simon filed a n EEOC charge of race discrimination and retaliation. In February 2008, HCSO Internal Affairs Division (IAD) began an investigation of Sim o n . HCSO contends this investigation was based on an anonymous tip that Simon was w o r k in g an extra job in violation of policy for officers on transitional duty. When asked, Sim o n admitted he was working as a security guard at a car lot. Despite his admission, h e was forced to take polygraph exam during which the examiner asked questions r e g a r d in g his PFB. At the conclusion of the IAD investigation, Simon was suspended w ith o u t pay for 3 days for violating policy against extra employment while on transitional d u ty . In June 2008, Simon was placed on " r e str ic te d duty, " an even more limiting status th a n transitional duty. Simon alleges restricted duty is accompanied by severe restriction o f job opportunities and privileges as well as extremely negative perception among other o ffic e r s. In July 2008, Simon filed this federal lawsuit. Summary Judgment Standards S u m m a ry judgment is appropriate if no genuine issues of material fact exist, and the m o v in g party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c). The party m o v in g for summary judgment has the initial burden to prove there are no genuine issues of m a te ria l fact for trial. Provident Life & Accident Ins. Co. v. Goel, 274 F.3d 984, 991 (5th C ir. 2001). Dispute about a material fact is "genuine" if the evidence could lead a reasonable

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ju ry to find for the nonmoving party. In re Segerstrom, 247 F.3d 218, 223 (5th Cir. 2001). " A n issue is material if its resolution could affect the outcome of the action." Terrebonne P a r is h Sch. Bd. v. Columbia Gulf Transmission Co., 290 F.3d 303, 310 (5th Cir. 2002). A n a ly sis Sim o n asserts causes of action under 42 U. S. C . §§ 1981 and 1983, as well as Title V I I. He alleges that HCSO' s grooming policy violates the law both because of its adverse im p a c t on African-Americans, and its intentional discriminatory application in his case. H e also alleges that he has been retaliated against and subjected to a hostile work e n v ir o n m en t because of his complaints of discrimination. Defendants move for summary ju d g m e n t because: (1 ) Harris County Sheriff' s Office is a " n o n sui juris" entity; (2 ) Plaintiff' s § 1981 claim fails for lack of evidence of intentional discrimination; (3 ) Plaintiff' s adverse impact claim fails because he has no evidence that other A fr ic a n -A m e r ic a n deputies are similarly affected by the policy; (4 ) Plaintiff' s adverse impact claim fails because defendant has a legitimate

b u s in e ss necessity for its policy; (5 ) Plaintiff' s retaliation claim fails because he has no evidence of causation; and (6 ) Plaintiff' s hostile work environment claim fails because he has no evidence of se v e r e or pervasive misconduct.

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1.

N o n Sui Juris

The Harris County Sheriff' s Office does not enjoy a separate legal existence from th e County, thus is not an entity with capacity to sue and be sued. See Darby v. Pasadena P o lice Dept. , 939 F. 2 d 311, 313 (5th Cir. 1991). The proper defendant in this case in H a r r is County. Defendants' motion for summary judgment dismissing Harris County Sh e r iff' s Office, misnamed Harris County Sheriff' s Department in the amended complaint, is granted. 2. I n t e n tio n a l Discrimination

Sim o n sues Harris County for intentional racial discrimination in violation of § 1981 a n d Title VII. See Gen. Bldg. Contractors Ass' n , Inc. , 458 U. S. 375, 391 (1982);

L a u d e r d a le v. Texas Dept. of Criminal Justice, Instit. Div. , 512 F. 3 d 157, 166 (5th Cir. 2 0 0 7 ) . Intent may be inferred from circumstantial evidence. Baltazor v. Holmes, 162 F . 3 d 368, 376-77 (5th Cir. 1998). Because PFB is a race-linked disease that afflicts African-American men, Harris C o u n ty knew at the time it promulgated the policy that black men like Simon would be the o n ly ones subjected to it. Simon has presented evidence that although he began

m a in ta in in g a short beard in 2006, he was not subjected to any adverse employment action u n til June 2007 when he began patrolling in District IV, a predominately white area. Sim o n testifies that his supervisor in District IV, Captain Cordova, told him that while his a p p e ar a n c e may have been acceptable in District III, it " w o n ' t fly out here" and that he 5

(C o r d o v a ) " c o u ld n ' t take the heat" if Sheriff Thomas or his friends saw Simon " lo o k in g lik e that. " Simon explained that he suffered from PFB and had a letter from his doctor on file , but Cordova ordered him to shave or be placed on transitional duty. 2 Simon also has p r e se n te d evidence that other officers sometimes showed up for work with beards, but w e r e not punished in any way. 3 Simon has presented sufficient evidence to survive s u m m ar y judgment on his ¶ 1 9 8 1 discrimination claim. 3. A d v e r se Impact

T itle VII bans facially nondiscriminatory practices that have a discriminatory im p a c t. Griggs v. Duke Power Co. , 401 U. S. 424, 432 (1971). A plaintiff pursuing such a claim must be able to show that a challenged practice has a disproportionate adverse im p a c t on a category of persons protected by the statute. Connecticut v. Teal, 457 U. S. 4 4 0 , 446 (1982). There is no doubt that the challenged HCSO grooming policy has a disparate impact o n African-American men. The parties have stipulated that plaintiff has a permanent form o f psuedofolliculitis barbae (PFB) that prevents him from close shaving; that this condition p r im a r ily affects African-American men; and the condition is common, affecting s o m e w h e r e between 10-60% of African-American men. 4

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Ex. 2, Simon Aff., ¶ 6. Id. ¶ 8; Ex. 17, IAD report at 21; Ex. 23, Cordova Depo., at 44. Stipulation (Dkt. 27). 6

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T h e issue then is whether the County can meet its burden to prove a business n e c es s ity for the policy. IBEW v. Miss. Power & Light Co. , 442 F. 3 d 313, 318 (5th Cir. 2 0 0 6 ). If so, then the burden of proof shifts back to the plaintiff to show the availability o f a less discriminatory alternative practice or action that would provide a comparatively e ffe c tiv e means of meeting that goal. Id. ; Fitzpatrick v. City of Atlanta, 2 F. 3 d 1112, 1118 (11 th Cir. 1993). The County contends that its policy is necessary because many of its personnel are e m e r g e n c y " fir s t responders" who are required to wear properly fitted respirators in the e v e n t of a crisis such as a terrorist attack. After the events of September 11, 2001, HCSO w a s awarded federal funds for the purchase of respirators. HCSO ordered " M ille n n iu m R e s p ir a to r s " in May 2004, intending to issue one to all patrol officers designated as " f ir s t r e s p o n d e r s" in the event of crisis. However, not all Harris County deputy positions are d e sig n a te d as " fir s t responders, " and not all those in such designated positions have been iss u e d such a respirator. These facts tend to undermine the necessity argument. M o r e o v e r , the County has presented no expert testimony as to the business necessity fo r the no-beard policy. See Fitzpatrick. 2 F3d. at 1119 n. 6 (" A n employer' s subjective b e lie f that a practice is necessary, without any supporting evidence, is plainly insufficient to justify a discriminatory practice . . . employers have been required to present c o n v in c in g expert testimony demonstrating that a challenged practice is in fact required to p r o tect employees or third parties from documented hazards. " (internal citations omitted)). 7

T h e County relies on the Affidavit of current Sheriff Adrian Garcia, as well as certain n a tio n a l safety regulations. 5 This evidence is insufficient to establish the business necessity o f the policy as a matter of law. There are fact issues on the current record as to both b u s in e ss necessity and the availability of a less discriminatory alternative practice that p r e c lu d e summary judgment on Simon' s Title VII disparate impact claim. 6 4. R e ta lia tio n

In order to prove a claim of retaliation, a plaintiff must show that (1) he engaged in a protected activity; (2) the defendant took adverse employment action against him; and ( 3 ) there is a causal connection between the two events. Burlington Northern and Santa Fe Ry. Co. v. White, 548 U. S. 53 (2006); Mota v. Univ. of Tex. Health Sci. Ctr. , 261 F . 3 d 512, 519 (5th Cir. 2001). An employment action is adverse if it " w e ll might have d is s u a d e d a reasonable worker from making or supporting a charge of discrimination. " B u r lin g to n Northern, 548 U. S. at 68. F o r purposes of summary judgment, the County does not contest that Simon e n g a g e d in protected activity or suffered an adverse employment action. The County
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Simon objects to the Affidavit of Adrian Garcia submitted in support of defendants' motion (Dkt. 29-1). The court overrules the objection, but finds the Affidavit nondispositive of any summary judgment issue. HCSO amended the grooming policy at issue in April 2010 in response to Stewart v. City of Houston Police Dep' t. , No. 09-20690, 2010 WL 1286925 (5th Cir. March 30, 2010), and has restored Simon to active duty. At trial, the merits of Simon' s disparate impact claim will have to be addressed separately under each policy. However, even if the new policy does not violate Title VII, if the prior policy violated Title VII then issues will r emain regarding Simon' s entitlement to back pay. 8

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a r g u e s that because Simon admitted to violating HCSO policy by working an extra job w h ile on transitional duty, he cannot prove a causal connection between his protected a c tiv ity and any adverse employment action. 7 Sim o n has presented evidence that after he complained about discrimination, he was r e a ss ig n e d from a desk job to the property room. Property room duty involved manual la b o r and taking out trash. He also has presented evidence that after he filed his EEOC c h a r g e , HCSO instigated an Internal Affairs Division investigation of him, subjected him to a polygraph test at which he was asked questions to determine if he was lying about h a v in g PFB, suspended him without pay for 3 days for a violating transitional duty policy a g a in s t working an extra job, and moved him from transitional to restrictive duty. The fact th a t Simon admitted working an extra job does not completely resolve the question as to w h e th e r Simon was the victim of retaliation. Prior to the IAD investigation, Simon was m o v e d from a desk job to the property room. And after the IAD investigation, Simon was n o t only disciplined with a 3-day unpaid suspension, he also was placed on restricted duty. A jury could infer that the real reason for HCSO' s actions was retaliation for Simon' s c o m p la in ts that HCSO' s grooming policy was discriminatory.

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The County' s argument at the April 8, 2010 hearing that Simon' s retaliation claim is bar r ed by his failure to exhaust his administrative remedy of an appeal of the 3-day suspension is a red herring. Section 1981 does not have an exhaustion requirement, Hines v. D' Artois, 531 F.2d 726, 734 (5th Cir. 1976), and Simon exhausted his Title VII administr ative remedy by filing a charge with the EEOC and receiving a right to sue letter. 9

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H o stile Work Environment

T itle VII protects an employee from a workplace " p e r m e a te d with discriminatory in tim id a tio n , ridicule, and insult, that is sufficiently severe or pervasive to alter the c o n d itio n s of the victim' s employment and create an abusive working environment. " H a r r is v. Forklist Sys. , Inc. , 510 U. S. 17, 21 (1993) (internal citations omitted). Whether a hostile working environment exists depends on the totality of the circumstances, " in c lu d in g factors such as the frequency of the conduct, its severity, the degree to which th e conduct is physically threatening or humiliating, and the degree to which the conduct u n r e a so n a b ly interferes with an employee' s work performance. " Septimus v. Univ. of H o u s to n , 399 F. 3 d 601, 611 (5th Cir. 2005). In appropriate circumstances, an employer m a y be liable for a hostile working environment in the absence of a tangible employment d ec isio n affecting the plaintiff. See Burlington Industries, Inc. v. Ellerth, 524 U. S. 742, 7 6 0 -65 (1998); Williams v. Admin. Review Brd. , 376 F. 3 d 471, 476 (5th Cir. 2004) (" H o s tile work environment claims . . . generally result from discrimination that does not cu lm inate in a tangible or adverse employment action. " ) . In this case, the " h a r a ss m e n t" of which Simon complains consists largely of c o n se q u e n c e s of tangible employment actions that Harris County took, ostensibly to e n fo r c e its policies on grooming and extra jobs. Those actions were placement on tr a n sitio n a l duty, and later restricted duty, which allegedly resulted in restrictions on job o p p o r tu n itie s (i. e . , overtime, promotions, transfers, extra work) and privileges (i. e . , 10

w e a r in g police uniform, open carry of a weapon, building access). There is no evidence in this case of slurs, insults, ridicule, intimidation or other race-based hostility which ty p ifie s a hostile working environment claim. Cf. Rogers v. EEOC, 454 F. 2 d 234, 238 (5th C ir . 1971); Walker v. Thompson, 214 F. 3 d 615, 626 (5th Cir. 2000). The court concludes that Simon has not met his burden to create a fact issue as to w h e th e r his treatment subjectively was so severe and pervasive as to constitute an a c tio n a b le hostile work environment. The court will grant summary judgment on this c la im . C o n c lu s io n F o r the reasons stated above, defendants' motion for summary judgment is granted in part and denied in part. Specifically, Simon' s claims against HCSO are dismissed. Sim o n ' s hostile work environment claim is dismissed. Simon' s claims for intentional d is c r im in a tio n and retaliation in violation of § 1981 and Title VII, and for discriminatory a d v e r se impact under Title VII, remain for trial. Signed at Houston, Texas on April 12, 2010.

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