Patrick v. City Of Houston et al

Filing 73

SUMMARY JUDGMENT OPINION granting 64 MOTION for Summary Judgment. (Signed by Magistrate Judge Stephen Wm Smith) Parties notified. (jmarchand)

Patr i ck v. City Of Houston et al

Do c. 73

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 P ATRICIA PATRICK, P l a i n t i ff , vs. T HE CITY OF HOUSTON, ET AL., D e fe n d a n ts . § § § § § §

C IVIL ACTION H-08-2629

S U M M A R Y JUDGMENT OPINION T h is employment dispute is before the court on defendants'1 motion for summary ju d g m e n t (Dkt. 64). The court held a hearing on June 29, 2010. Having considered the p a rtie s' submissions and argument of counsel, the court grants the motion.2 B a ck g ro u n d Facts T h e following facts are undisputed unless otherwise noted. Patricia Patrick began w o rk in g for the City in January 2006 as an administrative coordinator in the Human R eso u rce s Division of the Convention and Entertainment Facilities Department (CEFD).3 F o r the review period January 9, 2006 through April 24, 2006 she received a generally fa v o ra b le employee performance evaluation (EPE) from her supervisor, Stephanie Bell

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Defendants in this case are the City of Houston, Lilliana Rambo, Brenda Bazan, and Dawn Ullrich (collectively referred to as defendants or City except where necessary to differentiate between them). Default was entered as to defendant Linda Hunter on November 24, 2009 (Dkt. 57). Plaintiff's claims against Hunter have been severed (Dkt. 72) so that final judgment may be entered in this case. The parties have consented to the jurisdiction of this magistrate judge for all purposes, including entry of final judgment (Dkt. 21). She previously worked for the Houston Fire Department.

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Dockets.Justia.com

W illiam s, with an overall appraisal rating of 3.60, or effective.4 Patrick's relationship with W illia m s soured in the months that followed amid complaints by Patrick that Williams was tre a tin g her unfairly and hindering her advancement.5 As a result, Dawn Ullrich, Director o f the CEFD, reassigned Patrick to the supervision of Linda Hunter.6 Hunter's EPE for P a tric k for the period August 2006 through November 2006 noted that Patrick "needs im p ro v e m e n t" in interpersonal skills and teamwork, but gave her only a slightly lower o v e ra ll appraisal rating of 3.41, still an "effective" rating.7 In December 2006, Ullrich re c o m m e n d e d Patrick receive a 9.1% salary increase due to increased responsibilities and c h a n g ed duties.8 In March 2007, Patrick reported to the Office of Inspector General that

L in d a Hunter was conducting personal business on City time. Patrick previously had assisted H u n te r in this endeavor by driving Hunter around.9 On September 19, 2007, the OIG s u s ta in e d several of Patrick's allegations of misconduct against Hunter.1 0 Patrick contends th a t after she made her complaint about Hunter, Hunter and Williams began retaliating a g a in s t her. Patrick's next performance review, which covered the approximately one-year

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Plaintiff's ex. C. See defendants' ex. 5. Defendants' ex. 2. Defendants' ex. 20. Plaintiff's ex. E. Plaintiff's ex. M. Plaintiff's ex. O. 2

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p e rio d May 7, 2006 through April 15, 2007, noted several areas in which Patrick needed im p ro v e m e n t, but resulted in an overall appraisal rating of 3.08, or effective. Patrick strongly d is a g re e d with the results of this evaluation. O n April 20, 2007, Patrick had a confrontation with a coworker, Ella Humphrey, over tim e sh e e ts . Patrick accused Humphrey of assault and called the police. Patrick filed a c rim in a l complaint against Humphrey.1 1 Shortly thereafter, Patrick was transferred to the P a rk in g Management Division of the CEFD.12 O n August 24, 2007, Patrick complained to her supervisor in Parking Management, D e rric k Williams, that a male employee, Reginald Calhoun, made a sexually offensive co m m en t to her. Instead of immediately investigating, Williams instructed Patrick to return to work and to put her complaint in writing. Patrick sent an email to Williams at 4:58 p.m., w h ich Williams promptly forwarded to his superior at 5:14 p.m..1 3 About three weeks later, W illia m s conducted an unscheduled employee performance evaluation (EPE) of Patrick for th e period April 23, 2007 September 14, 2007. That review resulted in an overall appraisal ra tin g of 2.88, or needs improvement.1 4

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Plaintiff's ex. J. According the complaint, Humphrey ultimately pleaded "guilty/nolo contendre in a court of law." Dkt. 13 n.2. Plaintiff puts the date of transfer at April 23, 2007. Plaintiff's ex. O. Defendants contend she was transferred in May 2007. Defendants' motion, at 3. Defendants' ex. 19. Defendants' ex. 20. 3

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On October 4, 2007, Patrick filed an OIG complaint about Calhoun's inappropriate s e x u a l comment, Williams's alleged delay in investigating, and the unscheduled EPE.1 5 On M a y 29, 2008, the OIG informed Patrick that it found insufficient evidence to sustain the a lle g a tio n s , although it did find that Williams failed to give Patrick an EPE plan when she b e g a n working in his department.16 O n October 5, 2007, Ullrich reassigned Patrick to work from home "until further n o tic e while we determine the status and terms of your continued employment with the C o n v e n tio n & Entertainment Facilities Department." 1 7 Patrick received full pay while on re a ss ig n m e n t, but was required to be in her residence during work hours, and was required to call in at 9:00 a.m. and 3:00 p.m. to personally speak with a supervisor.18 O n February 20, 2008, Ullrich placed Patrick on "indefinite suspension," citing v io la tio n s of City policies requiring that employees demonstrate a considerate, friendly and c o n stru c tio n attitude and prohibiting "flagrant insubordination." The suspension cites c o n d u c t by Patrick after the September 2007 unscheduled EPE 19

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See defendants' ex. 15 (EEOC charge). Plaintiff's ex. R. The EPE plan apparently is a form outlining what is expected of an employee. See amended complaint (Dkt. 13), ¶ 15. Defendants' ex. 10. Id.; Plaintiff's ex. Q. Defendants' ex. 1. 4

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P a tric k appealed her indefinite suspension to the Municipal Employees of the City of H o u sto n Civil Service Commission. The Civil Service Commission upheld the indefinite s u s p e n s io n on March 11, 2008.2 0 On April 30, 2008, Patrick filed charges with the EEOC a lleg in g harassment, discrimination, and retaliation based on her sex and her opposition to u n law ful employment practices.2 1 She filed this federal case on August 28, 2008. Plaintiff a ss e rts causes of action for First Amendment Retaliation pursuant to 42 U.S.C. § 1983, re ta lia tio n in violation of Title VII, negligent training, supervision, and retention, and in t e n tio n a l infliction of emotional distress.2 2 S u m m a r y Judgment Standards Summary 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 ju ry to find for the nonmoving party. In re Segerstrom, 247 F.3d 218, 223 (5th Cir. 2001).

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Defendants' ex. 13. Patrick previously filed an EEOC charge for the period August 24, 2007 through October 5, 2007 for sex discrimination. Defendants' ex. 15. She added retaliation in the April 2008 charge. Defendants' ex. 14. The amended complaint does not include causes of action based on sex discrimination or hostile work environment. 5

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" 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). T h e standard for granting summary judgment in Title VII cases is by now too familiar to warrant extended recitation. Reeves v. Sanderson Plumbing Prods., Inc., succinctly su m m a riz e s the appropriate inquiry: Whether judgment as a matter of law is appropriate in any particular case will d ep en d on a number of factors. Those include the strength of the plaintiff's p rim a facie case, the probative value of the proof that the employer's e x p la n a t io n is false, and any other evidence that supports the employer's case a n d that properly may be considered on a motion for judgment as a matter of la w . 5 3 0 U.S. 133, 148-49 (2000). The court must draw all reasonable inferences in favor of the n o n -m o v a n t, and disregard all evidence favorable to the moving party that the jury is not re q u ire d to believe. Id. at 150-51. Trial courts should not treat discrimination differently th a n other ultimate questions of fact for purposes of Rule 50 or 56. Id. at 148. A n a ly sis 1. F ir st Amendment Retaliation a. N o Vicarious Liability 2 3

A § 1983 claim cannot be based on respondeat superior or vicarious liability. Monell v . Department of Social Services, 436 U.S. 658, 694 (1978). Only final decision-makers may

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In her summary judgment response, Patrick did not respond to defendants' arguments about municipal and vicarious liability. 6

b e held liable for First Amendment retaliation under § 1983. DePree v. Saunders, 588 F.3d 2 8 2 , 288 (5th Cir. 2009). The City is liable under § 1983 only if an official policy or custom caused the d e p riv a tio n of Patrick's First Amendment right. Piotrowski v. City of Houston, 237 F.3d 567, 5 7 8 (5th Cir. 2001) ("Under the decisions of the Supreme Court and this court, municipal lia b ility under section 1983 requires proof of three elements: a policymaker; an official p o licy ; and a violation of constitutional rights whose 'moving force' is the policy or custom"). T h e Fifth Circuit recognizes that a single decision may support municipal liability, but only if the decision was made by a final policymaker responsible for that activity. Bennett v. P ip p in , 74 F.3d 578, 586 (5th Cir. 1996). State law determines whether a particular in d iv id u a l is a final policymaker with regard to a particular decision. Id. Because Patrick w a s a civil service employee, the Civil Service Commission was the final decision-maker and fin a l policy-maker regarding her indefinite suspension. Brown v. City of Houston, 337 F.3d 5 3 9 (5th Cir. 2003). The City is entitled to summary judgment on Patrick's § 1983 claim of First A m e n d m e n t retaliation because Patrick has not shown she was injured by an official p r a c tic e , policy or custom of the City. Both the City and the individual defendants are also e n t itle d to summary judgment on Patrick's § 1983 claim to the extent it is based on the a d v e rs e employment action of indefinite suspension because the Civil Service Commission

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w a s the final decision-maker.2 4

The court will consider the merits of Patrick's First

A m e n d m e n t claim against the individual defendants based on her transfer to the parking d iv is io n of CEFD.25 b. E le m e n ts of First Amendment Retaliation

To establish a First Amendment retaliation claim, a plaintiff must show that: (1) the e m p lo y e e suffered an adverse employment decision; (2) the employee's speech involved a m a tter of public concern; (3) the employee's interest in commenting on matters of public c o n c ern outweighs the defendants' interest in promoting workplace efficiency; and (4) the e m p l o y e e ' s speech motivated the defendants' action." Depree v. Saunders, 588 F.3d 282, 2 8 6 -8 7 (5th Cir. 2009); Harris v. Victoria ISD, 168 F.3d 216, 220 (5th Cir. 1999). Patrick asserts that she engaged in protected speech on a matter of public concern w h e n she reported Hunter's illegal activities and filed criminal charges against Humphrey for a ss a u lt. She alleges that she suffered the adverse employment action of transfer to a different d e p a rtm e n t because of this protected speech, and her interest outweighs the City's interest in w o rk p la c e efficiency.

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The CSC is not a defendant in this action. Patrick does not assert in her compliant or her summary judgment response that her reassignment to work from home was an adverse employment action for purposes of her First Amendment claim. 8

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A ss u m in g that Patrick engaged in protected speech,2 6 she has not met her burden to sh o w that she suffered a retaliatory adverse employment action. According to the affidavit o f Dawn Ullrich, Ullrich made the decision to transfer Patrick from the Human Resources D iv is io n to Parking Management due to Patrick's conflicts with Hunter and Humphrey. G iv e n that Patrick had lodged serious allegations of misconduct, including theft of City time, a g a in s t Hunter, and had been assaulted by Humphrey, it was prudent to remove Patrick from th a t immediate environment. In fact, Patrick had requested a transfer to another

d e p a rtm e n t.2 7 There is no evidence that the move was retaliatory. Moreover, under the c irc u m s ta n c es , there is no basis on which a reasonable juror could conclude that Patrick's free s p e e ch interests outweigh the City's interest in workplace efficiency under the circumstances p r e s e n te d . For these reasons, defendants are entitled to summary judgment on Patrick's First A m e n d m e n t retaliation claim. 2. T itle VII Retaliation

In order to establish retaliation, Patrick must show that she participated in an activity p ro te c te d by Title VII, that defendants took an adverse employment action against her, and th a t a causal connection exists between the protected activity and the adverse employment a c tio n . McCoy v. City of Shreveport, 492 F.3d 551, 557 (5th Cir. 2007). In a retaliation case,

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See Garcetti v. Ceballos, 547 U.S. 410, 425 (2006) (exposing governmental inefficiency and misconduct is a matter of considerable significance . . . but the First Amendment does not shield from discipline the expressions employees make pursuant to their professional duties). Defendants' ex. 2. Patrick alleges in her amended complaint that she requested a transfer from Hunter's department. Dkt. 13, ¶ 13. 9

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a n adverse employment action is one "that a reasonable employee would have found . . . m a ter ially adverse, which in this context means it well might have dissuaded a reasonable w o rk e r from making a charge of discrimination." Id. at 559; Burlington Northern & Santa F e Railway Co. v. White, 548 U.S. 53, 126 S. Ct. 2405, 2415 (2006). Ultimately, Patrick m u s t prove that the adverse employment action would not have occurred but for her p ro te c te d conduct. Strong v. University Healthcare Sys., L.L.C., 482 F.3d 802, 806 (5th Cir. 2 0 0 7 ). P atrick 's Title VII retaliation claim is based on her August 24, 2007 report of a s e x u a lly inappropriate comment by Calhoun, and her complaint to OIG regarding her s u p e rv is o r's allegedly untimely investigation of that report.2 8 Shortly after Patrick reported th e incident to her supervisor, Derrick Williams, he gave her an unscheduled EPE and rated h e r performance as "needs improvement." Then, the day after she filed her OIG complaint s h e was temporarily reassigned to work from home and a few months after that was te rm in a te d . Williams has testified that he performed the September 2007 EPE because Patrick p e rfo rm e d subpar work and had conflicts with Williams and her coworkers since being tra n sfe rre d into his department in April/May 2007.2 9 Ullrich has testified that she reassigned P a tric k to work from home because of her continued pattern of interpersonal problems, and
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Patrick cannot state a claim for Title VII retaliation based on her complaint against Hunter or her assault charge against Humphrey because those activities do not constitute opposition to any practice made illegal by Title VII. Defendants' ex. 4. 10

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s p e c ific a lly in reaction to Patrick's show of blatant disrespect to Lillian Rambo when Rambo a tte m p te d to meet with Patrick to discuss the September 2007 EPE.3 0 Patrick has no evidence th a t these explanations are pretext for retaliation. Swanson v. General Serv. Admin., 110 F .3 d 1180, 1188 (5th Cir. 1997) (where the employer offers a nondiscriminatory explanation fo r both the adverse action and its timing, the plaintiff must offer some evidence from which th e jury may infer that retaliation was the real reason). Ullrich has testified that she did not k n o w about Patrick's October 4, 2007 OIG complaint of sexual harassment at the time she re a ss ig n ed Patrick.3 1 Patrick's Title VII retaliation claim should be dismissed as to all d e fe n d a n ts because she cannot create a fact issue as to the causal connection between her p ro te c te d activity and any adverse employment action. 3. N e g lig e n t Training, Supervision, and Retention

A § 1983 claim for negligent training, supervision and retention against the City re q u ire s proof that an official City policy or custom was the moving force behind the d e p riv a tio n of Patrick's constitutional rights. Piotrowski v. City of Houston, 237 F.3d 567, 5 7 8 (5th Cir. 2001). In addition, any such § 1983 claim requires proof that the defendant's d e li b e r a te indifference was the "closely related" cause of plaintiff's injury. Doe v. Taylor In d e p . Sch. Dist., 15 F.3d 443, 453 (5th Cir. 1994). Ullrich is the only policymaker among the defendants. Plaintiff falls far short of s h o w in g any deliberate indifference by Ullrich to the proper training, supervision, or
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Defendants' ex. 2. Defendants' ex. 2. 11

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re te n tio n of employees that is closely related to any harm to Patrick. The assault by H u m p h re y can hardly be linked to any failure of job training, and there is no evidence that U llr ic h had any prior knowledge of a propensity by Humphrey to violence. The same can b e said for Calhoun and Hunter. This claim should be dismissed. 4. I n t e n t io n a l Infliction of Emotional Distress

T h e elements of a cause of action under Texas law for intentional infliction of e m o tio n a l distress are: (1) that defendant acted intentionally or recklessly; (2) defendant's c o n d u c t was extreme and outrageous; (3) defendant's conduct caused plaintiff emotional d is tre s s ; and (4) the emotional distress was severe. Hoffman-La Roche, Inc. v. Zeltwanger, 1 4 4 S.W.3d 438, 445 (Tex. 2004). Patrick has presented some evidence that she suffers from a n x ie ty and depression and requires psychiatric treatment.3 2 She has presented no evidence th a t defendants' actions were extreme or outrageous. Extreme or outrageous conduct is that w h ich is "so outrageous in character, and so extreme in degree, as to go beyond all possible b o u n d s of decency, and to be regarded as atrocious, and utterly intolerable in a civilized c o m m u n ity ." S.W. Bell Mobile Sys., Inc. v. Franco, 971 S.W.2d 52 (Tex. 1998). A claim for intentional infliction of emotional distress does not lie for ordinary e m p lo y m e n t disputes. GTE Southwest, Inc. v. Bruce, 998 S.W.2d 605, 611 (Tex. 1999); Z e ltw a n g e r, 144 S.W.3d at 445. "Liability does not extend to mere insults, indignities, th re a ts , annoyances, petty oppressions, or other trivialities." Zeltwanger, 144 S.W.3d at 445.

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Plaintiff's ex. S. 12

N o th in g Patrick has shown raises this case above the level of an ordinary employment d is p u te . Defendants are entitled to summary judgment on Patrick's intentional infliction of e m o tio n a l distress claim. C o n c lu s io n F o r the reasons addressed above, defendants' motion for summary judgment (Dkt. 64) is granted. Plaintiffs claims are dismissed with prejudice. The court will issue a separate fin a l judgment. Signed at Houston, Texas on July 20, 2010.

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