Scott v. City of Houston Public Library
Filing
42
MEMORANDUM AND ORDER granting 29 MOTION for Summary Judgment. (Signed by Judge Ewing Werlein, Jr) Parties notified.(kcarr, )
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
CANDACE SCOTT,
§
§
§
§
§
§
§
§
§
Plaintiff,
v.
THE CITY OF HOUSTON,
Defendant.
CIVIL ACTION NO. H-10-1621
MEMORANDUM AND ORDER
Pending in this employment discrimination suit is the City of
Houston’s
No. 29).
(“Defendant”)
Motion
for
Summary
Judgment
(Document
After carefully considering the motion, response, reply,
and applicable law, the Court concludes for the reasons that follow
that the motion should be granted.
I.
Background
Plaintiff began working for Defendant at the Houston Public
Library as an administrative assistant in 2005.1
She was promoted
to administrative specialist in August 2007 to work for Deputy
Director Meller Langford in the Director’s office.2
In March 2008,
Plaintiff was transferred to the Houston Area Library Systems
1
Document No. 29, ex. 14-A at 42 (Exhibits 14-A to 14-E will
hereinafter be referred to as “Scott Depo.”).
2
Id., exs. 2, 3, & Scott Depo. at 55.
(“HALS”) department,3 where she continued as an administrative
specialist until her indefinite suspension in September 2009.4
Plaintiff brings this suit alleging discrimination on the basis of
a disability, specifically asserting that while working at HALS
from March 2008 to September 2009, “the City of Houston was aware
that [she] was being diagnosed with an illness concerning [her]
eyesight and concentration that affected [her] job performance[ ].
There were no provisions put in place by employer to accommodate my
situation.”5
Defendant contends that Plaintiff was indefinitely
suspended in accordance with City Policy because she received two
consecutive below acceptable performance evaluations.6
3
Id., Scott Depo. at 72.
4
Document No. 29, ex. 1; id., Scott Depo. at 99.
5
Document No. 25 (2d Am. Cmplt.).
Plaintiff’s complaint
states:
“This action is brought under Title VII of the Civil
Rights [Act] of 1964 for employment,” as well as under Title I of
the ADA, although her only factual assertions pertain to
discrimination on the basis of a disability. Plaintiff does not
allege any facts in her complaint or her response to summary
judgment, much less point to any evidence, of a Title VII
violation. Moreover, Plaintiff’s charge of discrimination filed
with the EEOC alleged only discrimination on the basis of a
disability. Document No. 29, ex. 14-G at 9. Plaintiff has failed
to assert a Title VII claim, establish a prima facie case for
it, or exhaust her administrative remedies under Title VII. The
Title VII claim is therefore dismissed.
6
Document No. 29, ex. 10.
2
II.
A.
Discussion
Summary Judgment Standard
Rule 56(a) provides that “[t]he 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.”
FED . R. CIV . P. 56(a).
Once the movant carries
this burden, the burden shifts to the nonmovant to show that
summary judgment should not be granted. Morris v. Covan World Wide
Moving, Inc., 144 F.3d 377, 380 (5th Cir. 1998).
A party opposing
a properly supported motion for summary judgment may not rest upon
mere allegations or denials in a pleading, and unsubstantiated
assertions that a fact issue exists will not suffice.
Id.
“[T]he
nonmoving party must set forth specific facts showing the existence
of a ‘genuine’ issue concerning every essential component of its
case.”
Id.
“A party asserting that a fact cannot be or is
genuinely disputed must support the assertion by: (A) citing to
particular parts of materials in the record . . .; or (B) showing
that the materials cited do not establish the absence or presence
of a genuine dispute, or that an adverse party cannot produce
admissible evidence to support the fact.”
FED . R. CIV . P. 56(c)(1).
“The court need consider only the cited materials, but it may
consider other materials in the record.”
3
Id. 56(c)(3).
In considering a motion for summary judgment, the district
court must view the evidence “through the prism of the substantive
evidentiary burden.”
Anderson v. Liberty Lobby, Inc., 106 S. Ct.
2505, 2513 (1986). All justifiable inferences to be drawn from the
underlying facts must be viewed in the light most favorable to the
nonmoving party.
Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 106 S. Ct. 1348, 1356 (1986).
“If the record, viewed in
this light, could not lead a rational trier of fact to find” for
the nonmovant, then summary judgment is proper.
Kelley v. Price-
Macemon, Inc., 992 F.2d 1408, 1413 (5th Cir. 1993).
On the other
hand, if “the factfinder could reasonably find in [the nonmovant’s]
favor, then summary judgment is improper.”
Id.
Even if the
standards of Rule 56 are met, a court has discretion to deny a
motion for summary judgment if it believes that “the better course
would be to proceed to a full trial.”
Anderson, 106 S. Ct. at
2513.
B.
ADA Framework
The
Americans
with
Disabilities
Act
(ADA)
prohibits
discrimination against employees on the basis of a disability.
U.S.C. § 12101 et seq.
ADA
either
by
discrimination.
(5th Cir. 1995).
42
A plaintiff can establish a claim under the
producing
direct
or
indirect
evidence
of
Daigle v. Liberty Life Ins. Co., 70 F.3d 394, 396
If a plaintiff relies on indirect evidence, the
4
claim is analyzed using the burden shifting framework set out in
McDonnell Douglas Corp. v. Green, 93 S. Ct. 1817 (1973).
70 F.3d at 396.
Daigle,
Under this framework, a plaintiff must make a
prima facie case of discrimination by showing that: (1) she was
disabled or was regarded as disabled; (2) she was qualified for the
job; (3) she was subjected to an adverse employment action;7 and
(4) she was replaced by a non-disabled person or was treated less
favorably than non-disabled employees.
Id.
If the plaintiff
establishes a prima facie case, the burden shifts to the defendant
to articulate a legitimate nondiscriminatory reason for the adverse
employment action, producing some evidence in support thereof.
Daigle, 70 F.3d at 396.
The defendant’s burden is satisfied if it
“produces any evidence which, taken as true, would permit the
conclusion that there was a nondiscriminatory reason for the
adverse action.” Id. (citation and quotation marks omitted). Once
defendant satisfies this burden, plaintiff must show that the
articulated reason is merely a pretext for discrimination.
Id.;
McInnis, 207 F.3d at 282.
7
This element has also been stated to require a showing that
plaintiff was subjected to an adverse employment action because of
the disability. See McInnis v. Alamo Cmty. Coll. Dist., 207 F.3d
276, 279-80 (5th Cir. 2000).
5
C.
Analysis
Plaintiff cites to evidence that she was qualified for her
job, and Defendant does not challenge this assertion.8
Plaintiff
further asserts that she suffered an adverse employment action when
she was indefinitely suspended; this fact is undisputed.9
The two
elements of the prima facie case in dispute, therefore, are whether
Plaintiff can properly be characterized as having a disability
under
the
ADA
and
whether
she
was
replaced
or
treated
less
favorably than a non-disabled employee.
1.
Disability
Plaintiff asserts in response to Defendant’s summary judgment
motion that she can satisfy the first element of her prima facie
case because she was regarded as disabled.10
In support thereof,
8
Document No. 35 at 8 (citing to Scott Depo. at 44 & 59).
9
Id.
10
Id. at 6-7. Defendant replies that Plaintiff cannot raise
for the first time the “regarded as” claim in her response, when
her complaint, see Second Amended Original Complaint (Document
No. 25), alleges only an illness concerning her eyesight and
concentration that affected her job performance, and a failure to
accommodate. Document No. 36 at 2-3. The City is correct that a
claim which is not raised in the complaint but only in response to
a motion for summary judgment is not properly before the court.
Cutrera v. Board of Supervisors of La. State Univ., 429 F.3d 108,
113 (5th Cir. 2005). Nonetheless, giving the broadest possible
interpretation to Plaintiff’s Complaint, which she filed pro se
before she retained counsel, and observing that the “regarded as”
claim is Plaintiff’s only argument against the motion, the claim
will be evaluated.
6
she asserts the following facts by way of her own declaration.
!
In January 2008, Plaintiff missed a day or two of work
because of high blood pressure. Upon return to work, the
Deputy Director of Library Operations, Meller Langford,
met with Plaintiff, and, in the course of that meeting,
Plaintiff informed Langford that she suffered from
hypertension (high blood pressure) and was undergoing
diagnosis for a condition that might be Lupus. Plaintiff
states that Langford responded that Plaintiff might want
to consider leaving the office because of its high
pressure and stressful environment, to which Plaintiff
informed Langford that she had worked in stressful jobs
before and was able to cope and perform her job.11
!
“Shortly thereafter,” Plaintiff missed eight days of work
due to an unspecified “minor illness,” during which time
Langford transferred Plaintiff to Houston Area Library
Systems (“HALS”) department.12
!
At the beginning of Plaintiff’s work at HALS, she had to
take intermittent days off from work, using sick leave
and FMLA, to attend a series of doctor’s appointments.
Wendy Willeford, the Interim Consultant, made comments to
Plaintiff about her frequent absence, such as “why do you
always have to miss work for doctor’s appointment[s]?”
and “why do your appointments have to be on a certain day
each time?”13
!
In December 2008, Plaintiff scheduled a meeting with
Willeford to discuss an unspecified medical diagnosis,
which Plaintiff thought might require an extended absence
from work while she underwent radiation treatment.
Plaintiff asserts that Willeford responded by stating,
“[A]re we supposed to feel sorry for you?”14
!
Plaintiff asserts that after Willeford learned of
Plaintiff’s medical condition, she began treating
11
Document No. 35-1, ¶ 1.
12
Id. ¶ 2.
13
Id. ¶ 3.
14
Id. ¶ 4.
7
Plaintiff
differently
and
objected
to
any
idea
Plaintiff put forward to “enhance [her] job performance.”
Specifically, Plaintiff asserts that Willeford would
assign her tasks to be completed within a 24-hour
deadline, which would coincide with Plaintiff’s days off
from work.15
!
In January 2009, Plaintiff asserts that she met with the
HALS Coordinator, Elizabeth Swan, and discussed the fact
that she was having trouble with her eyesight, which
might be related to her illness--not specifying to Swan
the name of the illness but stating that she had seen
five specialists over the course of five months.16
!
Plaintiff states that after learning of her deteriorating
vision, Swan “began assigning me more documents to
proofread and requiring that I review more of her handwritten corrections to the department informational
booklets we used to distribute within the HALS system,
without regard to her poor penmanship.”17
The term “disability” is defined under the ADA as “(A) a
physical or mental impairment that substantially limits one or more
major life activities of such individual; (B) a record of such
impairment; or (C) being regarded as having such an impairment (as
described in paragraph (3)).” 42 U.S.C. § 12102(2). Paragraph (3)
states, in relevant part, that an individual is regarded as having
a disability, “if the individual establishes that he or she has
been subjected to an action prohibited under this chapter because
of an actual or perceived physical or mental impairment whether or
15
Id. ¶ 7.
16
Id. ¶ 5.
17
Id. ¶ 6. Plaintiff states that she does not believe Swan
knew of her hypertension or discriminated against her because of
it. Id.
8
not the impairment limits or is perceived to limit a major life
activity.”
42 U.S.C. § 12102(3).
It is the perception of the relevant decisionmakers that must
be considered in determining whether Plaintiff is regarded as
disabled.
Deas v. River West, L.P., 152 F.3d 471, 476 n.9 (5th
Cir. 1998).
In this case, there is no evidence showing that
Langford was involved in any way in the decision indefinitely to
suspend Plaintiff, which is the alleged adverse employment action
in this case.
Plaintiff was indefinitely suspended after working
at HALS for more than a year.
The evidence shows that Wendy
Willeford and Rhea Brown Lawson were the only decisionmakers in the
indefinite
action.18
suspension
Plaintiff
testified
in
her
deposition that she did not believe Lawson ever regarded her as
disabled.19
Therefore,
it
is
Willeford’s
perception
that
is
relevant for this element of Plaintiff’s prima facie case.
Plaintiff argues, but without any supporting evidence, that
Willeford perceived Plaintiff to be disabled.
The evidence shows
that Willeford first met with Plaintiff on May 2, 2008 to discuss
Willeford’s
concerns
about
deficiencies
in
Plaintiff’s
job
performance at HALS, deficiencies that had nothing to do with
18
Lawson, the Houston Public Library Director, received from
Willeford the recommendation that Plaintiff should be indefinitely
suspended, and then made the final recommendation to suspend
Plaintiff after meeting with Plaintiff. Document No. 29, exs. 1,
4, 10.
19
Id., Scott Depo. at 242.
9
Plaintiff’s absences from work.20
Willeford raised her concerns
about Plaintiff’s job performance before Plaintiff requested leave
under the Family and Medical Leave Act of 1993 (“FMLA”) and well
before Plaintiff told Willeford that she had a serious medical
condition for which she was considering taking time off.21
There
is no evidence, other than Plaintiff’s speculative assertion, that
Plaintiff’s
possible
need
of
medical
leave
in
December
2008
played any role in Willeford’s decision to recommend Plaintiff’s
indefinite suspension in September 2009.
Moreover, Plaintiff
presents no evidence that she ever in fact applied for extended
medical leave or that she ever reported to Willeford that her
illness impaired in any way her ability to perform her job.
The
summary judgment evidence is that Willeford made her recommendation
based on deficiencies in Plaintiff’s performance, deficiencies that
Willeford had informed Plaintiff about as early as May 2008 and
that
Plaintiff
did
not
subsequently
correct.
Plaintiff’s
conclusory assertions to the contrary are not sufficient to satisfy
Plaintiff’s burden.
(5th
Cir.
2002)
allegations,
See Ramsey v. Henderson, 286 F.3d 264, 269
(“This
speculation,
Court
and
has
cautioned
unsubstantiated
that
conclusory
assertions
are
inadequate to satisfy the nonmovant’s burden in a motion for
summary judgment.” (citations omitted)).
20
Document No. 29, exs. 4, 5.
21
Id., exs. 4, 12, & 13.
10
There is likewise no evidence that Willeford’s supervisor,
Elizabeth Swan, perceived Plaintiff to be disabled.
While Plain-
tiff vaguely told Swan about problems with her eyesight possibly
resulting from a medical condition, Plaintiff herself admits that
she did not realize that her condition was causing her limitations
at work, and there is no reason alleged or put in evidence showing
why Swan should have thought so.22
Plaintiff fails to make a prima
facie showing that she was regarded as disabled.
2.
Less Favorable Treatment
Because Plaintiff failed to present summary judgment evidence
that her employer or its decisionmakers regarded her as disabled,
Plaintiff’s prima facie case fails.
Plaintiff’s case also fails,
however, because she does not allege or offer proof that she was
replaced by anyone, much less by a person without a disability.
Likewise, she does not plead nor present evidence that she was
treated less favorably than any particular employee at HALS.23
22
Plaintiff testified that it was only as she later looked
back on events that she realized some of her problems at work were
due to her illness. Document No. 29, Scott Depo. at 124, 155, 16465, 185.
23
Document No. 35 at 9. Plaintiff’s conclusory response to
summary judgment states that, “[o]nce in HALS, Scott was
continuously subjected to disparate treatment in the form of the
quality and quantity of her work assignments all targeting her
perceived disabilities.” Id. However, Plaintiff names no other
person at HALS with whom she considers herself similarly situated
and offers no proof comparing her work assignments to those of
other similarly situated employees.
11
Plaintiff does claim that she was treated less favorably than
Ms. Allison, who was the assistant to the Houston Public Library
Director Rhea Brown Lawson, stating that Ms. Allison was not
transferred to HALS.24 Plaintiff provides no proof that Ms. Allison
and Plaintiff were in any manner similarly situated. See Aldrup v.
Caldera, 274 F.3d 282, 287 (5th Cir. 2001) (in disparate treatment
claim, the employees must be in “nearly identical circumstances”)
(citing Mayberry v. Vought Aircraft Co., 55 F.3d 1086, 1090 (5th
Cir. 1995)).
Not only is there no evidence to show that they were
in similar situations before Plaintiff’s transfer to HALS, which in
any event is not the alleged adverse employment action, but there
is no evidence regarding Allison’s performance, her evaluations,
and her employment history at the Houston Public Library either
before or after Plaintiff’s transfer to HALS.
Plaintiff fails to
raise a fact issue on this element of her prima facie case as well.
3.
Legitimate, Nondiscriminatory Reason
Notwithstanding Plaintiff’s failure to raise a genuine issue
of fact on the essential elements of a prima facie case, Defendant
presents uncontroverted summary judgment evidence that it had a
legitimate, nondiscriminatory reason for indefinitely suspending
Plaintiff,
24
namely,
Plaintiff’s
Document No. 35 at 10.
12
below
acceptable
performance.
Plaintiff received below acceptable scores for two consecutive
evaluations--April 2007 to May 2008 and May 2008 to April 2009.25
In the first of these evaluations, given to and discussed with
Plaintiff on July 11, 2008, Meller Langford, Plaintiff’s supervisor
at the Director’s office, reported that Plaintiff needed to give
more attention to details and that she did not always complete
projects in a timely manner.26
Langford also had previously met
with Plaintiff in January 2008 for an informal evaluation, and told
her
that
she
wanted
Plaintiff
to
make
improvements
in
her
punctuality, organizational skills, and communication of messages.
Wendy Willeford had also previously met with Plaintiff at HALS on
May 2, 2008, to express her concerns about Plaintiff’s lack of
prioritization, errors on reporting, and failure to ask clarifying
questions.27
Willeford’s pre-meeting checklist shows that she
expected also to advise Plaintiff to stop listening to her music
while working and receive additional training, among other things.28
The second below acceptable evaluation, presented to Plaintiff
on April 24, 2009, reported many of the same deficiencies recorded
in her previous evaluation, such as frequent errors on reports and
25
Document No. 29, exs. 6-7.
26
Id., ex. 6 at 3.
27
Id., ex. 5.
28
Document No. 29, ex. 5. Plaintiff testified that she did
listen to music while working. Id., Scott depo. at 133.
13
failure to meet deadlines.
This evaluation also gave specific
examples of problems, including that Plaintiff’s database updates
were slow (for example, the spelling of an employee’s name was not
corrected in the database for six weeks), that Plaintiff did not
complete the Director’s Sourcebook until two months after the
deadline and that it contained errors, and that Plaintiff’s travel
reports often had three or more errors and were untimely filed.29
Under Supervisor’s Comments, the following was stated:
Miss Scott has shown some improvement in communication by
asking clarifying questions in the past few months and in
the creation of time sheets. Her work shows an interest
in appearance or unrequested decoration over content.
Documents are still submitted incorrectly, often late and
without necessary paperwork. There does not seem to be
a basic understanding of how various parts of her job are
related nor the ability to identify problems. Miss Scott
requires more and closer supervision and correction than
is appropriate for the time that she has been in this
position.30
Plaintiff
admits
continued
to
that
make
she
did
frequent
not
errors
always
on
meet
deadlines
reports.31
The
and
formal
evaluations and the records of informal meetings with Plaintiff
identify
areas
in
which
Plaintiff’s
performance
repeatedly
was found not to be effective, both before and after she raised
concerns
about
her
possible
illnesses.
In
sum,
29
Id., ex. 7 at 1, 4.
30
Id., ex. 7 at 9.
31
Id., Scott Depo. at 122-23, 143, 146, 154.
14
Defendant’s
unrefuted
summary
judgment
evidence
establishes
a
legitimate,
nondiscriminatory reason for Plaintiff’s indefinite suspension.
4.
Pretext
Plaintiff argues that Defendant’s reason is pretextual because
of contradictions in the stated reasons for Plaintiff’s indefinite
suspension.32
Plaintiff asserts that Defendant is relying on the
two consecutive substandard evaluations as its basis for indefinite
suspension, but that Defendant asserted to Plaintiff that the
reason was “misconduct,” citing the discharge letter from Rhea
Lawson.33
Brown
The
Director
stated
the
factual
bases
indefinitely suspending Plaintiff as follows:
Ms.
Scott’s
two
most
recent
Employee
Performance Evaluations (“EPE”) reflect an overall
rating performance of less than effective. On July
11, 2008, Ms. Scott received a rating of 2.53
(Needs Improvement). Prior to receiving her second
evaluation, it was explained to Ms. Scott that her
job performance needed to improve and that she
would be re-evaluated.
On April 24, 2009, she
received the second evaluation and her overall
appraisal rating was 2.44, again falling below the
effective rating of three (3). Based on the two
below standard EPE’s, Ms. Scott is eligible for an
indefinite suspension under City policy.
As a
civil-service protected employee, Ms. Scott had
thirty (30) days after receiving her EPE in which
she could file a grievance to challenge her
32
Document No. 35 at 11.
33
Id.
15
for
ratings, which she did, however, Ms. Scott withdrew
the grievance prior to the Step II meeting.34
The Director’s letter then goes on to explain the legal basis for
her action, citing and quoting City Policy that declares indefinite
suspension as an authorized disciplinary action that may be taken
when an employee has two consecutive evaluations below acceptable.
This is the “misconduct” that the Director specifically referenced.
The Director’s letter is not internally inconsistent and Plaintiff
has raised no fact issue on pretext.
III.
Order
For the foregoing reasons, it is
ORDERED that Defendant City of Houston’s Motion for Summary
Judgment (Document No. 29) is GRANTED and all claims are DISMISSED
WITH PREJUDICE.
The Clerk will enter this Order and provide a correct copy to
all parties.
SIGNED at Houston, Texas, on this 12th day of September, 2012.
____________________________________
EWING WERLEIN, JR.
UNITED STATES DISTRICT JUDGE
34
Document No. 29, ex. A.
16
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