Martinez v. Hempstead Independent School District

Filing 60

MEMORANDUM AND ORDER granting 48 MOTION for Summary Judgment. Plaintiff Efrain Martinez's claims are DISMISSED WITH PREJUDICE. (Signed by Judge Ewing Werlein, Jr) Parties notified.(kpicota, )

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
EFRAIN MARTINEZ,
Plaintiff,

v.
HEMPSTEAD INDEPENDENT SCHOOL
DISTRICT,
Defendant.

§
§
§
§
§
§
§
§
§
§

CIVIL ACTION NO. H-12-314

MEMORANDUM AND ORDER
Pending in this Title VII discrimination case is Defendant
Hempstead Independent School District's Motion for Summary Judgment
(Document No. 48)
Evidence

and Objections to Plaintiff's Summary Judgment

(Document

No.

54).

After

considering

the

motions,

responses, reply, supplemental reply, and applicable law, the Court
concludes for the reasons that follow that Defendant's Motion for
Summary Judgment should be granted.
I.
In

November

("Defendant")

2007,

Background

Hempstead

Independent

hired Plaintiff Efrain Martinez

police officer,

School

District

("Plaintiff")

as a

and assigned him to the middle school campus. 1

Defendant alleges that Plaintiff began having performance problems

1

Document No. 48 at 3; Document No. 52, ex. A

~

3.

including

tardiness,

insubordination, and failure to monitor the hallways.2

In November

almost

2008

immediately

and November

after

2009,

being

hired,

Plaintiff violated district policy by

interviewing students without notifying or securing the presence of
an administrator. 3

Middle school principal Amy Lacey

("Lacey")

informally counseled Plaintiff about these issues during the 20082009 and 2009-2010 school years.4

On February 22,

2010,

Lacey convened a formal meeting with

Plaintiff to discuss Plaintiff's performance problems. 5

Director

of Operations Floyd Richard ("Richard"), Superintendent Gene Glover
( "Glover") ,
Plaintiff

Police

Chief

attended. 6

written reprimand,

Gerald

Robinson

Lacey presented

( "Robinson" ) ,

Plaintiff

with

a

formal

in which Lacey listed the following concerns

"which arise on a frequent basis .

. that must be addressed.

Lack of promptness to work at 7:30 AM
Extended time on your personal cell phone (often during
critical supervision times during lunch and dismissal)
Sitting in your office during instructional periods with
the door shut rather than monitoring the halls either
personally or using the surveillance system

2 Document No. 48 at 3 ; Id. , ex. 6
~ 12.
3

and

Document No. 48 at 3-4; Id. , ex. 9 ~~ 7, 10.

4 Document No. 48 at 3· Id. , ex. 6
,
~ 12.
5

Document No. 48 at 4· Id. , ex. 9 ~ 11.
,

6

Document No. 48 at 4· Id. , ex. 9 ~ 11.
,
2

Sleeping in your office
Initiating investigations per reports to you by a parent,
staff member or student without consulting Chief
Robinson, Mrs. Uherek or me,,7
Lacey also gave to Plaintiff written directives "to be implemented
immediately" for improvement. 8

Among other things, Plaintiff was

instructed that if a parent, staff member, or student reported an
incident to him, he should consult with Lacey, Chief Robinson, or
the assistant principal before initiating an investigation.

Lacey

warned Plaintiff in writing that if he failed to comply with the
directives,

he could face "severe disciplinary action up to and

including termination.,,9
On March 10,
("Young")

2011,

high school principal Dr.

Sharon Young

asked Plaintiff to investigate a reported incident of

vandalism at the high school.10

When Plaintiff arrived at the high

school campus, he interviewed the complaining student, and then two
other students, including a suspect. 11 Defendant's summary judgment
evidence is that Plaintiff at this time interviewed two students
while

being

in

a

room

alone

with

the

student

without

an

7 Document No 48, ex. 26 at HISD/Martinez 000153.
8
Document No. 48 at 4;
HISD/Martinez 000153-000154.

Id.,

ex.

9

~

11;

Id.,

ex.

26

at

9 Document No. 48 at 4; Id., ex. 26 at HISD/Martinez 000154.
10 Document No. 52 at 7; Document No. 48, ex. 3
11

Document No. 52 at 7; Id., ex. A
3

~

9.

~

8.

administrator being present, in violation of school board policy.12
One of these students later accused Plaintiff of having threatened
her "by telling her she could go to court and or jail for lying."
As Director of Operations Richard later stated to Plaintiff, this
left Defendant with "a situation where it's your word against a
student's word." 13
When Plaintiff returned to the high school the next morning,
Director of Operations Richard instructed Plaintiff and Officer
Keisha Cannon, who had been asked to assist in the investigation,
not to conduct any further investigation until Richard called them
to do SO.14

Officer Cannon initially complied and relocated to the

break room,15 but Plaintiff without telling or obtaining permission
from

Richard

or

anyone

else

in

authority,

again

started

interviewing students. 16
The summary judgment evidence is that Director of Operations
Richard conducted a formal investigation into Plaintiff's behavior
and determined that Plaintiff had violated district policy as to
the proper questioning of

students and that

he had improperly

disclosed a student's name and confidential statement during an

12 Document No. 48 at 5· Id. , ex. 29.
,
13

Document No. 48, ex. 29 at HISD/Martinez 000053.

14 Document No. 48 at 5· Id. , ex.
,

6

~ 15.

15 Document No. 48 at 5· Id. , ex. 8
,
~~ 8-9.
16 Document No. 48 at 5 , Document No. 52, ex. A
.
~ 10.
4

interview. 17
Plaintiff,

On March 23, 2011, Richard and Chief Robinson met with
and Richard issued to

Plaintiff

a

formal

Letter of

Correction. 18 Among other things, the Letter of Correction informed
Plaintiff that because the high school principal Dr.

Young was

"very disappointed with our department" due to Plaintiff's conduct
during the investigation,

she "asked that you only come on her

[high school]

campus when it's an emergency or it is absolutely

necessary." 19

The letter also informed Plaintiff that Director

Richard suspended Plaintiff for two days without pay.20
The next week, on April I, 2011, without an emergency or order
to do so,
Robinson. 21
10 -11

Plaintiff went on the high school campus to see Chief
While there, he solicited statements about the March

incident

from

two

high

school

employees. 22

When

Chief

Robinson learned about Defendant's presence on the high school

17 Document No. 48 at 6; Id., ex. 6

~

20.

18 Document No. 48 at 6; Id., ex. 29.
19 Document No. 48, ex. 29 at HISD/Martinez 000054.
20 Id.
Plaintiff was suspended for March 24-25, 2011.
Defendant produces payroll records that it alleges demonstrate that
Plaintiff was not docked pay for either of those days.
Document
No. 48, exs. 6, 41.
21 Document No. 52 at 10; Id., ex. A

~ 14.

22 Document No. 52 at 10; Id., ex. A

~ 14.

5

campus,

he

recommended

that

Plaintiff

be

terminated. 23

The

Superintendent terminated Plaintiff on April 7, 2011.24
Plaintiff, a Hispanic male born in Mexico, alleges that his
suspension and termination were motivated by his race and national
origin, in violation of Title VII.25

Plaintiff also alleges that

Defendant violated his constitutional right to equal protection and
seeks recovery under 42 U.S.C. Section 1983. 26

Defendant moves for

summary judgment.
II.

Objections

Defendant objects that Plaintiff's Declaration,

attached to

Plaintiff's Response to Defendant's Motion for Summary Judgment,
should be

stricken as

a

sham affidavit because it contradicts

Plaintiff's deposition testimony and is internally inconsistent. 27

23 Document No. 48 at 7; Id., ex. 7

~

22.

24 Document No. 48 at 7; Id., ex. 2

~

14.

25 Document No. 52 at 2 - 3.
Defendant's Motion for Summary
Judgment analyzes other complaints alluded to by Plaintiff in
his interrogatories, including harassment, failure to promote,
disparate evaluations, disparate discipline, disparate pay, and
disparate vehicle assignment.
Document No. 48 at 10.
However,
Plaintiff's Complaint and his Response to the instant motion limit
his claim to Defendant's alleged violations of Title VII and § 1983
by suspending and terminating him.
Document No. 52 at 2.
The
Court analyzes Plaintiff's claim as framed by Plaintiff, and
considers the other issues only to the extent that they may bear on
Plaintiff's allegations of improper suspension and termination.
26 Document No. 33

~

20 (2d Am. Complt.)

27 Document No. 54 at 1-5.
6

Defendant points

to a

number of minor

inconsistencies between

Plaintiff's deposition testimony and his declaration, but these do
not

rise

to

affidavit"

the

level

of

rendering

the

declaration

See S.W.S Erectors,

that must be stricken.

Infax, Inc., 72 F.3d 489, 495-96 (5th Cir. 1996)
"sham affidavit"

doctrine,

defeat

for

a

motion

which

summary

counsels

judgment

that

using an

a

"sham

Inc.

v.

(recognizing the
a

party cannot

affidavit

that

impeaches, without explanation, his prior sworn testimony) .
Defendant also objects that Plaintiff violated Federal Rule of
Civil Procedure 37(c) by making allegations in his declaration that
he did not previously make in his deposition or in his responses to
interrogatories.

These objections are denied because Plaintiff's

challenged statements in his Declaration are alluded to in his
interrogatory responses,

or

the

interrogatories

and deposition

questions were not framed so as to require Plaintiff's answers to
include

the

challenged

statements are harmless.

statements,

or

because

the

challenged

See FED. R. CIV. P. 37(c)

In Paragraph 5, Defendant's hearsay objections to Plaintiff's
recitation of

statements made to him by a student and a student's

mother, and Plaintiff's statement that he received a call in which
some unidentified person asked him to report to the office are
sustained.

In Paragraphs 6-15, Defendant's hearsay objections to

Plaintiff's various recitations of statements that he claims to
have made to others are sustained.

7

Defendant's objection to the

photo

of

a

phone

screen

attached

as

part

of

Exhibit

S

to

Plaintiff's Response to the Motion for Summary Judgment on the
grounds that it is not properly authenticated is sustained.

All

other objections are denied.
III.
A.

Motion for Summary Judgment

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.
this

burden,

FED.

ff

the

R.

Crv.

56

P.

burden shifts

to

Once the movant carries

(a) .

the nonmovant

summary judgment should not be granted.

to

show that

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
case.

'genuine'
ff

Id.

issue concerning every essential component of its
"A party asserting that

a

fact

cannot be or is

genuinely disputed must support the assertion by:
particular parts of materials in the record .

(A)

citing to

., 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

8

admissible evidence to support the fact."

FED. R. Crv. P. 56 (c) (1).

"The court need consider only the cited materials,
consider other materials in the record."

but

it may

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."
2505, 2513 (1986).

Anderson v. Liberty Lobby, Inc., 106 S. Ct.

All justifiable inferences to be drawn from the

underlying facts must be viewed in the light most favorable to the
nonmoving party.
Corp.,

106

Matsushita Elec.

Indus.

s. Ct. 1348, 1356 (1986).

Co.

v.

Zenith Radio

"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

standards of Rule 56 are met,

is

improper."

Id.

Even if

the

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.

Title VII and Section 1983
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"

9

because of that individual's race.
Title

VII

inquiry

is

42 U.S.C.

"whether

the

373

F.3d

discrimination

647,

can

be

(5th

651

The

intentionally

Roberson v. Alltel Info.
Cir.

established

circumstantial evidence.

2000e-2(a) (1).

defendant

discriminated against the plaintiff."
Servs. ,

§

Intentional

2004) .

through

either

direct

or

Wallace v. Methodist Hosp. Sys., 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
Douglas Corp. v. Green,

93 S. Ct. 1817

(1973).

Watkins r 619 F.3d 463, 466 (5th Cir. 2010).
a

plaintiff

must

first

create

a

Id.; Jackson v.

Under this framework r

presumption

of

intentional

discrimination by establishing r by a preponderance of the evidence r
a prima facie case of discrimination.

Wallace r 271 F.3d at 219.

Once the plaintiff establishes a prima facie case, the burden
then

shifts

to

discriminatory

the

employer

reason

for

to

its

articulate
actions.

a

legitimate r

Reeves

Plumbing Prods., Inc. r 120 S. Ct. 2097, 2106 (2000).

v.

non-

Sanderson

The burden on

the employer at this stage "is one of production r not persuasion;
it

'can involve no credibility assessment. "'

Id.

(quoting St.

Maryrs Honor Ctr. v. Hicks r 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

instead a pretext

for discrimination

10

is

not

truer

but

(pretext alternative)

i

is
or

(2) the employer's reason, while true, is not the only reason for
its conduct,

and another "motivating factor"

protected characteristic

is the plaintiff's
Burrell v.

(mixed-motive alternative).

Dr. Pepper/Seven Up Bottling Grp., Inc., 482 F.3d 408, 411-12 (5th
Cir. 2007).
Section 1983 provides that any person who, "under color of any
statute,

ordinance,

State

regulation,

depri ves

"

another of

custom,

or

usage,

"any rights,

of

privileges,

any
or

immunities secured by the Constitution and laws, shall be liable to
the party injured in an action at law,

suit in equity,

proper proceeding for redress .

42 U.S.C.

"

§

or other

1983.

When a

plaintiff asserts an employment discrimination claim under Section
1983, courts apply the Title VII burden-shifting framework.

See

Patel v. Midland Mem' 1 Hosp. and Med. Ctr., 298 F.3d 333, 342 (5th
Cir.2002)
under

("The summary-judgment test for discrimination claims

.

§

1983 is the same as the test for discrimination

claims under Title VII."); see also Knatt v. Hosp. Servo Dist. No.
1 of East Baton Rouge Parish,
2009)
C.

(applying McDonnell Douglas framework to

472,
§

481

(5th Cir.

1983 claim).

Analysis
Since the

under

327 Fed. Appx.

§

summary judgment test

for discrimination claims

1983 is the same as the test for discrimination under Title

VII, and Plaintiff's

§

1983 and Title VII claims are based on the

11

same underlying conduct,
Knatt,

the claims are analyzed together.

327 Fed. Appx. at 481 (5th Cir. 2009)

Douglas framework to § 1983 claim); Patel,
Cir. 2002)
under

See

(applying McDonnell
298 F.3d at 342

(5th

("The summary-judgment test for discrimination claims
§

1983 is the same as the test for discrimination
Plaintiff has

claims under Title VII.").
evidence of discrimination,
Douglas framework.

not produced direct

so the Court applies the McDonnell

See Wallace, 271 F.3d at 219.

Plaintiff must

first establish a prima facie case of discrimination by demonstrating that he "(1)
qualified

for

the

employment action;

is a member of a protected class;

position;
and

(4)

(3)

was

subject

to

an

(2) was
adverse

was replaced by someone outside the

protected class, or, in the case of disparate treatment, shows that
other similarly situated employees were treated more favorably."
Bryan v. McKinsey & Co., Inc., 375 F.3d 358, 360

(5th Cir. 2004)

(citing Okoye v. Univ. of Tex. Houston Health Sci. Ctr., 245 F.3d
507,512

(5th Cir. 2001)).

It is undisputed that Plaintiff has

satisfied his burden of establishing the first three elements of
his prima facie case. 28

However, Defendant argues that Plaintiff

has failed to provide proof on the fourth element.

28 See Document No.
52, ex. A ~~ 2-3 (Plaintiff is a Hispanic
male born in Mexico); Id. (Plaintiff was certified to serve as a
police officer by the Texas Commission on Law Enforcement Officer
Standards and Education); Document No. 48, ex. 37 (termination
letter) .

12

--------,-------------, -------------

Plaintiff contends that he was replaced by Eric Young, a white
male

hired

by

Defendant

in

October

2011

to

serve

as

the

"Resource/Peace Officer" at the middle school. 29 Defendant counters
that Young did not replace Plaintiff, because Young was not hired
until seven months after Plaintiff was terminated. 3D

During these

seven months Plaintiff pursued his administrative remedies with
Defendant.
next

day

Defendant then posted Plaintiff's vacant position the
after

the

school

board denied

Plaintiff's

grievance and Young was hired one week later. 31

Level

III

Defendant offers

no evidence or explanation otherwise for its seven months' delay in
posting the vacant position such as to permit an inference that
Young did not replace Plaintiff.
746,

752

(6th Cir. 1992)

Cf. Lilley v. BTM Corp., 958 F.2d

(finding new employee hired nine months

after plaintiff's termination did not "replace" plaintiff for the
purposes of establishing a prima facie case where business "had
picked up to the extent that another employee was needed in the
sales department.") . 32

Defendant's further argument that Young was

29

Document No. 52 at 12-13; Document No. 48, ex. 6

30

~

29.

Document No. 48 at 13.

31
See Document No. 48, ex. 4 ~~ 12-14 (board unanimously
denied Plaintiff's appeal on October 17, 2011); Document No. 52,
ex. U (job posting for "Resource/Police Officer" posted on October
18, 2011); Document No. 48, ex. 6 ~ 29 (Officer Young began his
employment with Defendant on October 25, 2011).

But see Simpson v. Midland-Ross Corp., 823 F.2d 937, 941
(6th Cir. 1987) (fact that plaintiff was not replaced until several
months after his discharge "substantially weaken [ed]" his claim).
32

13

not

Plaintiff's replacement because Defendant had modified the

middle

school

peace

officer

position

to

include

responsibilities and added a preference for a B.A.
Justice is also unavailing.

teaching

in Criminal

The summary judgment evidence is that

Young did not assume any teaching responsibility in either the
2011-12 school year or in the 2012-13 school year. 33

The fact that

Defendant has an expectation for Young to assume additional duties
in the future does not alter the fact that Young began performing
Plaintiff's former duties in October 2011.

The summary judgment

evidence is sufficient at least to raise a fact issue that Young
was hired to replace Plaintiff. 34
With Plaintiff having established a prima facie case,
burden

shifts

to

Defendant

to

articulate

discriminatory reason for its actions.

a

legitimate,

the
non-

Reeves, 120 S. Ct. at 2106.

Defendant's proof is that it suspended Plaintiff for violating
previous verbal and written directives to refrain from interviewing

Defendant asserts that "due to timing and certification
requirements, [the Criminal Justice] class will be taught for the
first time in the 2013-2014 school year." Document No. 55 at 9 n.
10.
33

34 See Barnes v.
GenCorp Inc., 896 F.2d 1457, 1465 & n.10 (6th
Cir. 1990)
(In work force reduction context, "[a] person is
replaced only when another employee is hired or reassigned to
perform the plaintiff's duties.
. Of course an employer could
not avoid liability by changing the job title or by making minor
changes to a job indicative of an attempt to avoid liability.");
cf. McGovern v. Transamerica Ins. Fin. Corp., 854 F. Supp. 393, 399
(D. Md. 1993) (new employee hired six months after plaintiff's
termination did not "replace" plaintiff where new employee assumed
only 5% of plaintiff's former duties)

14

students without first notifying and securing the presence of an
administrator,35 and that it terminated Plaintiff when,
a

week

later,

he

violated

yet

another

returning to the high school campus. 36

written

less than

directive

by

Defendant has satisfied its

burden of articulating a legitimate, non-discriminatory reason for
Plaintiff's suspension and termination.
Plaintiff argues that Defendant's non-discriminatory reasons
for

terminating

him

treatment theory. 37

are

pretextual,

relying

on

a

disparate

"Disparate treatment occurs where an employer

treats one employee more harshly than other 'similarly situated'
employees for 'nearly identical' conduct."
Bank, 665 F.3d 632, 637 (5th Cir. 2011)

Vaughn v. Woodforest

(citing Lee v. Kansas City

S. Ry. Co., 574 F.3d 253, 260 (5th Cir. 2009); Wallace, 271 F.3d at
221).

The

excludes

"nearly identical"
employees

with

standard is a

"different

stringent one,

responsibilities,

and

different

supervisors, different capabilities, different work rule violations
or different disciplinary records."

Beltran v.

Univ.

Health Sci. Ctr. at Houston, 837 F. Supp. 2d 635, 642
2011)

(Miller, J.)

identical,"
violation as

a

(citing Lee, 574 F.3d at 259-60).

co-worker must
the

have

committed the

aggrieved employee.

Okoye,

35 Document No. 48 at 17; Id., exs. 26, 29.
36 Document No. 48 at 17-18; Id., ex. 35.
37 Document No. 52 at 16-21.
15

245

of Tex.

(S.D. Tex.

To be "nearly
same

type

F.3d at

of
514

(plaintiff could not compare herself to three co-workers who were
not fired despite committing violations because, unlike plaintiff,
Plaintiff contends

the co-workers were not accused of assault).
that Officers Donnie Mordecai,
Joseph

and

Williams,

Keisha

Gerald Robinson,
Cannon

were

Malcolm Pryor,

similarly

situated

comparators who received more favorable treatment than Plaintiff.38
Officer Mordecai, who was Police Chief, is not an appropriate
comparator for Plaintiff because he was Plaintiff's supervisor, and
therefore was not "similarly situated" to Plaintiff. 39
F.3d at

259-60

(employees

with different

See Lee, 574

supervisors

responsibilities are not "similarly situated")

i

and work

Vaughn, 665 F. 3d at

637 (retail bankers who reported to plaintiff were not appropriate
comparators) .
Officer Robinson was promoted to succeed Mordecai as Police
Chief in January 2010, and therefore--as Plaintiff's supervisor-was

not

Plaintiff

"similarly
asserts,

situated"
without

to
any

Plaintiff

after

corroboration,

that

that

time. 40
Robinson

improperly interviewed students when he had previously served as an

38 ld. at 14-15.
39 Officer Mordecai was the Chief of Police of Hempstead lSD,
and directly supervised Plaintiff, a police officer, from the
beginning of Plaintiff's employment in November 2007 until
Mordecai's resignation in 2009. Document No. 48, ex. 6 ~ 11.
40

Document No. 48, ex. 7

~

6.
16

officer.41

Plaintiff presents no evidence, however, that Defendant

had knowledge of Robinson's alleged violations.

Wallace, 271 F.3d

at 221 (employees were not similarly situated to plaintiff where no
one

in

a

supervisory

capacity

was

aware

of

their

actions).

Moreover, Robinson had received no prior written warnings, while
Plaintiff was issued two written warnings before his termination. 42
See

Beltran,

disciplinary
Plaintiff
comparator

837

F.

records

therefore
who

was

Supp.
are
fails
the

2d at 642
not

(employees with different

considered

"nearly

to present proof

beneficiary

of

identical").

that Robinson is a

disparate

treatment

by

Defendant.
Officer Pryor, who was hired about the same time as Plaintiff
but who resigned in 2008 after one year as an officer, did have the
same

job responsibilities as

Plaintiff.

Pryor had no written

disciplinary warnings during his one year of employment. 43

And

again, Plaintiff presents no evidence that the school district had
knowledge that Pryor conducted improper interviews as asserted by

41 Plaintiff asserts in his declaration that "on many
occasions," he "personally saw" Officer Robinson conduct interviews
without an administrator present, and that on one occasion, he
assisted Officer Robinson in conducting such interviews. However,
Plaintiff does not allege when these events took place, nor does he
claim that he or anyone else reported the violations to any
supervisor or school authority. Document No. 52, ex. A ~ 12.
42
See Document No. 52, ex. C at 48-49 (no verbal or written
complaints against Robinson)

43 See Document No. 52, ex. C at 25-28 (Pryor had verbal
warnings and a written schedule, but no written complaints) .
17

Hence,

Plaintiff.

Plaintiff has not established that Pryor was

"similarly situated" to Plaintiff.
Officer

Williams,

responsibilities as

a

white

male,

Plaintiff and,

warnings in his disciplinary record.
Plaintiff's case,
committed a

also

had

the

like Plaintiff,

same

job

had written

Moreover, just as it did in

Defendant terminated Officer Williams when he

third violation after having received two previous

written warnings.

This summary judgment evidence does not permit

an inference of preferential treatment for Williams compared to
Plaintiff.44

Moreover, the summary judgment evidence does not show

that Defendant
conduct,"

terminated

which

also

these

two men

disqualifies

for

Williams

"nearly identical
as

an

appropriate

comparator.
Finally,

Plaintiff

has

not

"similarly situated" to Plaintiff.

shown

Officer

Cannon

to

be

At the time Cannon improperly

asked questions of a student on March 11, she had received no prior
wri t ten or verbal warnings

for misconduct. 45

There

is also a

difference in the relative culpability of Plaintiff and Cannon on
the morning of March 11.

The summary judgment evidence is that

Director Richard instructed Plaintiff and Cannon that morning to

44 See Document No.
rd., ex. 44.

52,

ex. W; Document No. 48, ex. 7 ,

13;

See Document No. 52, ex. C at 53-54 (no verbal or written
complaints against Cannon, other than "medical situation where she
has missed some time from work") .
45

18

Cannon relocated herself to the

wait until Richard called them.

break room to await Richard's call.

The testimony is in conflict

as to all of what happened next but,
favorable to Plaintiff,

viewed in the light most

Plaintiff initiated an interview with a

student in the presence of a school nurse, and later on Richard's
instruction took the student to the room where Cannon was waiting.
Cannon, who had worked for Defendant for only a little more than
six

months,

states

contradiction

without

that

she

became

"uncomfortable, because [she] was concerned about Officer Martinez
asking a student questions without an administrator around," but
tried "not to be disrespectful, especially to a person with more
seniority."

Then Cannon also asked the student "a couple more

questions

and

teammates

on

asked
the

her

to

back of

write

her

the

names

statement."

of

The

her

softball

uncontroverted

evidence is that Cannon left the room to locate Director Richard
so

that

he

could

join

the

student

interviews. 46

It

appears

uncontroverted that both Plaintiff and Cannon violated school board
policy, but Cannon's conduct overall was materially different from
Plaintiff's and, especially with her having had no prior written
warnings for misconduct, Cannon is not an appropriate comparator.
See Wallace, 271 F.3d at 221 ("[T]he conduct at issue is not nearly

identical when the difference between the plaintiff's conduct and

46

Id., ex. 8

~

10.
19

that of those alleged to be similarly situated accounts for the
difference in treatment received from the employer. ") .
In sum,

Plaintiff has

failed to raise a

genuine issue of

material fact that Defendant's reasons for terminating him were
pretextual.

Because there is no evidence that Plaintiff's race or

national origin was either the reason or a motivating factor for
Defendant's termination of Plaintiff's employment,

Defendant is

entitled to summary judgment.
IV.

Order

For the foregoing reasons, it is
ORDERED that Defendant Hempstead Independent School District's
Motion for Summary Judgment

(Document No.

48)

is GRANTED,

and

Plaintiff Efrain Martinez's claims are DISMISSED WITH PREJUDICE.
The Clerk will enter this Order, providing a correct copy to
all parties of record.
SIGNED at Houston, Texas, on this

t£ ~

of July, 2013.

WERLEIN, JR.
STATES DISTRICT JUDGE

20