Bornes v. HISD et al
Filing
27
MEMORANDUM AND ORDER on 24 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
ALICIA BORNES, ON BEHALF OF
MINOR M.J.W. JR.,
Plaintiff,
V.
5
5
5
5
5
5
CIVIL ACTION NO. 4:ll-00493
§
HOUSTON INDEPENDENT SCHOOL
DISTRICT (WESTSIDE HIGH
SCHOOL), JASON CATCHING, PAUL
CASTRO, and RITA LOPEZ,
5
5
5
5
§
5
Defendants.
MEMORANDUM AND ORDER
GRANTING PARTIAL SUMMARY JUDGMENT
Pending is Defendant Houston Independent School District's
("Defendant") Motion for Summary Judgment (Document No. 19). Pro
se Plaintiff Alicia Bornes ("Plaintiff") has filed no response to
the motion, and it is therefore deemed unopposed pursuant to Local
Rule
7.4 .'
Plaintiff,
a
black
woman,
filed
a
Charge
of
Although Plaintiff styled the case as "Alicia Bornes, on
behalf of minor M.J.W. Jr.," it is clear that she is also bringing
claims for Title VII discrimination on her own behalf. Plaintiff
may not represent the interests of her child without the
representation of an attorney in this type of case. See, e.g.,
Rodqers v. Dallas I.S.D., No. 3-07-CV-0386-P, 2007 WL 1686508, at
*2 (N.D. Tex. June 1, 2007) ("[Tlhe right to proceed pro se in
federal court does not give non-lawyer parents the right to
represent their children in legal proceedings."); see also Addudle
v. Body, 277 F. App'x 459, 461-62 (5th Cir. 2008) (unpublished op.)
(a non-attorney adult, even a legal guardian, is not permitted to
proceed pro se on behalf of a minor). The only claims properly
before this Court are Plaintiff's Title VII claims brought on her
own behalf.
Discrimination with the Equal Employment Opportunity Commission
("EEOC") on December 17, 2009, based on Westside High School's
("Westside") reduction in her working hours as a General Clerk I
and Defendant's later failure to hire her for a General Clerk I1
p ~ s i t i o n . ~ After carefully reviewing the complaint, motion, the
uncontroverted record evidence, and the applicable law, the Court
concludes as follows.
A.
Summary Judsment Standard
Rule 56(a) provides that summary judgment should be rendered
"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).
The moving party must "demonstrate
the absence of a genuine issue of material fact." Celotex Corp. v.
Catrett, 106 S. Ct. 2548, 2553 (1986).
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
Movinq, Inc., 144 F.3d 377, 380 (5th Cir. 1998).
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
Document No. 24, ex. G at 70; Document No. 1 (Orig. Pet.).
nonmoving party.
Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 106 S. Ct. 1348, 1356 (1986).
Although Plaintiff did not respond to the summary judgment
motion presently before the Court, the Court must look at the
summary judgment evidence, including evidence provided by Plaintiff
with her complaint, to determine whether summary judgment is
appr~priate.~ See John v. State of La. (Bd. of Trs. for State
Colls.
&
Univs.), 757 F.2d 698, 709 (5th Cir. 1985) ("summary
judgment cannot be supported solely on the ground that [plaintiff]
failed to respond to defendants' motion for summary judgment");
Harrison v. Corr. Corp. of America, No. 11-20464, 2012 WL 1623575,
at *2 (5th Cir. May 9, 2012) (unpublished op.) (reviewing grant of
summary judgment to which no response was filed and stating that
the summary judgment record included the exhibits included in
Plaintiff's petition) .
B.
Title VII Framework
Title VII proscribes an employer from hiring, discharging, or
otherwise discriminating against any individual "with respect to
his compensation, terms, conditions, or privileges of employment"
Prior to Defendant's filing of a summary judgment motion,
Plaintiff filed a document entitled, "Dispositive Motion," which
was struck by the Court because Plaintiff failed to show that she
had complied with Local Rule 5.4 requiring that Plaintiff serve the
document on opposing counsel. Document Nos. 22, 23. The Court
infers from Plaintiff's attempted filing of a dispositive motion
that she opposes Defendant's motion.
because of that individualfs race. 42 U.S.C.
Title
VII
inquiry
is
"whether
the
discriminated against the plaintiff ."
Servs.,
F.3d
373
discrimination
can
647,
be
651
2000e-2 (a)(1). The
defendant
intentionally
Roberson v. Alltel Info.
(5th Cir.
established
§
2004).
through
Intentional
either
direct
or
circumstantial evidence. Wallace v. Methodist Hosp. Svs., 271 F.3d
212, 219 (5th Cir. 2001).
If no direct evidence is presented, the
claims must be analyzed using the framework set forth in McDonnell
Douslas Corp. v. Green, 93 S. Ct. 1817 (1973)
.
I . Jackson v.
d;
Watkins, 619 F.3d 463, 466 (5th Cir. 2010). Under this framework,
a plaintiff
must
first
create
a presumption
of
intentional
discrimination by establishing, by a preponderance of the evidence,
a prima facie case of discrimination.
Wallace, 271 F.3d at 219.
Once the plaintiff establishes a prima facie case, the burden
then shifts to the employer to articulate a legitimate, nondiscriminatory reason for
its actions.
Reeves
v.
Sanderson
Plumbins Prods., Inc., 120 S. Ct. 2097, 2106 (2000). The burden on
the employer at this stage "is one of production, not persuasion;
it 'can involve no credibility assessment."'
- (quoting S .
Id.
t
Mary's Honor Ctr. v. Hicks, 113 S. Ct. 2742, 2748 (1993)). If the
employer sustains its burden, the prima facie case is dissolved,
and the burden shifts back to the plaintiff to establish either:
(1) that the employer's
proffered reason is not true, but is
instead a pretext for discrimination (pretext alternative); or
(2) the employer's reason, while true, is not the only reason for
4
its conduct, and another "motivating factor" is the plaintiff's
protected characteristic (mixed-motive alternative).
Burrell v.
Dr. Pepper/Seven U p Bottlinq Grp., Inc., 482 F.3d 408, 411-12 (5th
Cir. 2007).
C.
Analysis
1.
Reduction in Hours
Defendant hired Plaintiff in December 2007 to work as a
General Clerk I at Westside, a non-contract position for which she
was paid an hourly rate.4
On May 1, 2009, Plaintiff received a
"Letter of Reasonable Assurance, " required by Defendant's rules for
non-contract employees who worked fewer than twelve months of the
year.5
The letter, sent by Chief Academic Officer Karen Garza,
states that recipients of the letter "have reasonable assurance of
performing services in their present positions for HISD during the
2009-2010 school year."6 Plaintiff had been working forty hours a
week.7
On
July
17, Jason Catchings,
Document No. 24, exs. A
&
Assistant
Principal
at
E.
I . ex. E; see also i . ex. B at
d,
d,
1, ex. C.
I . ex. E.
d,
ex. F. A declaration from Jason Catchings states that:
Hourly clerks are not guaranteed any specific amount of
work hours during the week, but are simply used as needed
and paid by the hour. Many of our hourly clerks have
been children of Westside employees who work during the
holidays on specific projects, or college students. The
Westside, notified Plaintiff that her hours would have to be
reduced to five a week due to budget
constraint^.^
plaintiff
attempted to discuss her hours with Principal Paul Castro on the
first day of the school year, but he did not have time to talk to
her, and she did not follow up with him on the issue or return to
work.g
It was assumed that she resigned and the employment data
system indicates her position terminated on August 31, 2009 due to
her resignation.1°
To establish a prima facie case for discrimination under Title
VII, Plaintiff must establish that:
(1) she is a member of a
protected class; (2) she was qualified for her position; (3) she
was subjected to an adverse employment action; and either (4a) she
was replaced by someone outside the protected class, or (4b) others
outside the protected class who were similarly situated were not
terminated or otherwise were treated more favorably. See Bauer v.
Albemarle Corp., 169 F.3d 962, 966 (5th Cir. 1999);
Martin v.
Kroqer Co., 65 F. Supp. 2d 516, 543 (S.D. Tex. 1999) (explaining
that with respect to the fourth element, the plaintiff must show
that employees outside his protected class were retained or treated
hourly clerk position is not really intended to be relied
on as a full-time job by anyone.
I . ex. H.
d,
I . ex. H-1.
d,
I . ex. G at 70.
d,
I . ex. A.
d,
differently under circumstances nearly identical to plaintiff's).
\'[A]n adverse employment action consists of ultimate employment
decisions such as hiring, granting leave, discharging, promoting,
and compensating."
Pesram v. Honevwell, Inc., 361 F.3d 272, 282
(5th Cir. 2004) (citations and emphasis omitted).
The evidence shows, and Defendant does not dispute, that
Plaintiff was a member of a protected class,11 that she was
qualified for the job,l2 and that she suffered an adverse employment
action.13 The evidence does not show that Plaintiff was replaced
with someone outside of her protected class or that she was treated
less favorably than a similarly situated employee outside of her
protected class.14 Therefore, Plaintiff has failed to satisfy her
l1
I . ex. F.
d,
Document No. 1-3 at 1-2, 5, 7-8.
l3 Document No. 1-2 at 24; Document No. 24, ex. H-1.
As an
employee paid by the hour, a reduction in hours necessarily means
a reduction in compensation.
l4 Plaintiffrs conclusory assertions in her deposition that
either Heriberta Cabrera or Crystal Romo, both Hispanic women,
replaced her, is insufficient to satisfy her burden, particularly
given that, unlike Plaintiff, Cabrera and Romo held General Clerk
I1 positions and that Romo did not assume that position until a
year after Plaintiff left.
Document No. 24, ex. G at 56, 58, 71;
ex. 1-1 at 3, 5.
While the evidence shows that another
General Clerk I, Gladys Salinas, an employee the Court will assume
for purposes of this motion is outside of Plaintiffrs protected
class, did not receive a reduction in hours, the evidence does not
show that these women were similarly situated. Plaintiff worked
for the magnet program, while Salinas worked for the English as a
d,
Second Language (ESL) program. I . ex. I at 2. There is nothing
in the evidence to show that Plaintiff and Salinas had similar job
responsibilities, worked a comparable number of hours, or were
otherwise working "under nearly identical circumstances." Lee v.
a,
burden of establishing a prima facie case of discrimination on the
fourth element.
Even
Defendant
if
Plaintiff
satisfied
had
its
established
burden
of
legitimate, nondiscriminatory reason
a
prima
production
for
hours, namely budgetary constraints.15
of
reducing
facie
case,
showing
a
Plaintiff's
See E.E.O.C. v. Texas
Instruments Inc., 100 F.3d 1173, 1181 (5th Cir. 1996) (noting, in
the context of age discrimination, that a reduction in force was a
legitimate, nondiscriminatory reason for discharge); Bourqeois v.
Miss. Valley State Univ., Civ. A. No. 3:11-CV-126 HTW-LRA, 2012 WL
1556386, at *4 (S.D. Miss. Apr. 30, 2012) (merging plaintiff's
position into another position in anticipation of budget cuts was
a legitimate reason for not renewing plaintiff's
contract); see
also Leibowitz v. Cornell University, 584 F.3d 487, 503-04 (2d Cir.
2009) (anticipated budget cuts was a legitimate, nondiscriminatory
reason for nonrenewal of contract). There is no evidence that this
reason was pretextual.
Summary judgment is therefore appropriate
on this claim.
Kan. Citv S. Rv. Co., 574 F.3d 253, 260 (5th Cir. 2009) (quoting
Little v. Republic Ref. Co., Ltd., 924 F.2d 93, 97 (5th Cir.
1991)) .
Employees who have different supervisors, work for
different parts of a company, and/or have different work
responsibilities are not similarly situated. I . at 259-60.
d
l5
Document No. 24 at 13, ex. I.
2.
Failure to Hire
Plaintiff further alleges discrimination based on Defendant's
failure to hire her for a General Clerk I1 position at Westside
after her termination.
In order to make a prima facie case for
discrimination based on a refusal to hire, Plaintiff must show that
(1) she is a member of a protected class; (2) she applied and was
qualified for the position; (3) that she was not selected; and (4)
that after not selecting Plaintiff, the position remained open and
the employer continued to interview and hire applicants with
qualifications comparable to Plaintiff or was filled by someone
outside of Plaintiff's protected class.
McDonnell Douslas, 93 S.
Ct. at 1824; Davis v. Chevron U.S.A., Inc., 14 F.3d 1082, 1087 (5th
Cir. 1994) . I 6
The parties do not dispute that Plaintiff is a member of a
protected class,17 that she applied for the General Clerk I1
positionrl' that she was qualified for the position,lg and that she
l6
Plaintiff also alleges in her complaint that she was
discriminated against when working as a General Clerk I because she
was not promoted to a full-time position, Document No. 1-2 at 6-7,
but this claim is unavailing because Plaintiff admits that during
that period of her employment she did not apply for any other
position, which is a necessary element of a prima facie case. See
Davis v. Dallas Area Rapid Transit, 383 F.3d 309, 317 (5th Cir.
2004) (listing elements of prima facie case in failure to promote
claim).
l7
Document No. 24, ex. F.
Document No. 1-2 at 26; Document No. 24, ex. J. Plaintiff
provided evidence showing she applied to several positions in HISD,
but she only alleges discrimination as it relates to the General
was not
selected
for that position.
Plaintiff's
deposition
testimony indicates that Plaintiff believes that Heriberta Cabrera,
a Hispanic woman, was hired for that position but did not know with
The evidence shows
any certainty that this was actually the case."
that Cabrera was one of the applicants for the General Clerk I1
position, that the position was closed January 6, 2010, and that on
January 11, 2010, Cabrera was transferred from one General Clerk I1
position to another General Clerk I1 p~sition.~' Therefore, a
reasonable inference can be drawn that Cabrera filled the General
I1 position
Clerk
Because
Cabrera
for which both
is
outside
of
she and Plaintiff applied.
Plaintiff's
protected
class,
Plaintiff has established a prima facie case of discrimination for
failure to hire her to the General Clerk I1 position.
Defendant's argument for not hiring Plaintiff is that nobody
was hired for the position and that it was closed on December 14,
2009.22 However, Defendant provides no summary judgment evidence
to support this assertion, and therefore fails to carry its
evidentiary
burden
to
present
proof
of
a
nondiscriminatory reason for not hiring Plaintiff.
Clerk I1 position at Westside.
Defendant has
Document No. 1-2 at 26.
l9
Document No. 1-3 at 7-10.
20
Document No. 24, ex. G at 59-60.
21
I . exs. G, J,
d,
''
Document No. 24 at 18.
&
legitimate,
1-1 at 3.
10
therefore not shown itself entitled to summary judgment on the
failure to hire claim.
For the foregoing reasons, it is hereby
ORDERED that Defendant Houston Independent School District's
Motion for Summary Judgment (Document No. 24) is GRANTED in part,
and Plaintiff Alicia Bornesrs claim for discrimination under Title
VII based on a reduction in hours is DISMISSED with prejudice; and
Defendantfs
motion
is
otherwise
DENIED,
leaving
for
trial
Plaintiff's failure to hire claim.
The Clerk will enter this Order and provide a correct copy to
all parties.
SIGNED at Houston, Texas, on this
day of July, 2012.
ERLEIN, JR.
S DISTRICT JUDGE
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