Taylor v. Texas Southern University
Filing
42
MEMORANDUM AND ORDER GRANTING 31 MOTION for Summary Judgment , 40 MOTION to Supplement Motion for Summary Judgment as to 31 MOTION for Summary Judgment (Signed by Judge Keith P Ellison) Parties notified.(sloewe, 4)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
LINDA TAYLOR
Plaintiff,
VS.
TEXAS SOUTHERN UNIVERSITY
Defendant.
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Civ. Action No. 4:12-cv-01975
MEMORANDUM & ORDER
This case arises out of Plaintiff Linda Taylor’s (“Plaintiff’s” or “Ms. Taylor’s”)
employment with — and demotion and termination by — Defendant Texas Southern
University (‘Defendant” or “TSU”).
Before the Court is Defendant’s Motion for
Summary Judgment. (Doc. No. 31.) After considering the Motion, all responses and
replies, and the applicable law,1 the Court concludes that the Motion should be
GRANTED.
I. BACKGROUND2
Plaintiff, a 53-year-old light-skinned black woman, was hired by TSU in 1999 as
an Administrative Assistant. (Doc. No. 10, ¶¶ 10-11; Doc. No. 31-2 at 2.)
Soon
thereafter, she began to serve as an Executive Assistant to the Dean of the College of
Education (“the College”), who, starting in August 2001, was Jay Cummings. (Doc. No.
38-3 at 1.) Mr. Cummings raved about Ms. Taylor’s work in that role, praising her for
“always [going] above and beyond the call of her duties to perform any task asked of
her.” (Id.) For a period stretching from Sept. 2008 through Aug. 2009, Mr. Cummings
1
The Court has reviewed and considered the party’s supplemental filings (Doc. No 40; Doc. No. 41) in
addition to the documents submitted with the motion and the response.
2
The following facts in Section I are undisputed, except where noted.
1
gave Ms. Taylor an outstanding performance review, assigning her a perfect twenty
points out of twenty. (Doc. No. 35 at 26.)
In or around July 2010, TSU instituted the position of College Business
Administrator (“CBA”) and allowed Mr. Cummings to choose anyone already employed
within the College to fill the position. (Doc. No. 10, ¶ 14; Doc. No. 38-3 at 1.) He chose
Plaintiff.
(Doc. No. 38-3 at 1.)
The CBA position was designed to “manage the
administrative, financial, budgetary and human resource operations of the respective
school, college, or academic unit.” (Doc. No. 31-3 at 2.) As early as December of that
year, Plaintiff began to alert Mr. Cummings about “staff members turning in inaccurate
time and effort reports,” as well as “issues with faculty members not being present during
their posted office times.” (Doc. No. 38-3 at 2.) Plaintiff also reported to Marli Bober,
then TSU’s Associate Vice President of Business Operations and Systems, that certain
individuals were filing inaccurate time sheets.
(Doc. No. 38-5 at 1.)
Ms. Taylor
reaffirmed those reports of falsified time sheets and other financial wrongdoing in several
2011 reports to the Board of Regents. (Doc. No. 31-1 at 8.)
Though it was Ms. Taylor’s job to make such reports, she faced “hostility” from
her colleagues as a result. (Doc. No. 38-3 at 2.) Plaintiff reports that, by January 2011,
she was facing hostility from several TSU employees. (Doc. No. 31-1 at 5.) One of
Plaintiff’s former colleagues, Billy Sellers, corroborated those reports and stated that he
received similar treatment when she reported academic fraud and financial misconduct.
(Doc. No 38-4.)
Mr. Cummings resigned in early 2011, and he was replaced as dean by Lillian
Poats on or around April 1, 2011. (Doc. No. 31-1 at 9; Doc. No. 31-4 at 1.) Shortly after
2
taking over as Dean of the College, Ms. Poats received a slew of complaints about
Plaintiff’s stewardship of the College’s business operations. Ms. Poats was informed by
two College consultants that they had not been paid since September 2010. (Doc. No. 35
at 24.) Two other adjunct faculty members reported not being paid on time and/or at the
correct rate since January 2011. (Id.) Five administrative assistants in the College
complained that they were not receiving the supplies they required. (Id. at 25.) Three
graduate assistants asserted that they were owed stipends and/or travel payments and
some other faculty members complained that they too were owed travel reimbursements.
(Id.) At least seven different entities had sent past-due notices for invoices that the
College was supposed to have paid. (Id.)
Consequently, Ms. Poats wrote a letter to Plaintiff identifying four concerns: “(1)
late payments to the College’s vendors; (2) adjuncts, consultants, and graduate assistants
working for the College without being paid; (3) improper processing of travel requests
and reimbursement forms; and (4) the failure to ensure that departments were receiving
supplies that had been ordered.” (Doc. No. 31-4 at 2; see also id. at 6.) Ms. Taylor was
“reassigned temporarily pending assessment” of the concerns outlined in the letter —
concerns that Poats said had “come to [her] attention repeatedly since [her] appointment
as Interim Dean.” (Id. at 6.) Plaintiff was replaced on an interim basis by Derrick
Wilson. (Id. at 3.)
On April 18, 2011, Plaintiff responded in writing to her then-temporary demotion,
asserting that Ms. Poats had relied upon “incomplete and inaccurate information.” (Doc.
No. 35 at 9.) Plaintiff responded to each of the performance deficiencies Ms. Poats had
identified. Plaintiff did not deny that any of the problems existed; for most, she cited
3
either mistakes by other staff members or changes to office protocol as the source of the
inadequacy. (See id. at 9-10.) In that same month, Ms. Poats requested that TSU’s
Provost undertake an audit of the College’s business administration. (Doc. No. 31-4 at
3.)
The results of that audit came back in August 2011. The audit revealed that the
“College’s internal audit controls for financial transactions were below target.” (Doc.
No. 31-3 at 3.) More specifically, the audit showed five distinct deficiencies:
(1) complete and timely personnel action forms by the College prior to employees
starting work; (2) improper cash controls; (3) slow and non-payment of vendors
due to process deficiencies involving the CBA and accounts payable; (4) slow
payments and process of travel and expense reimbursements; and (5) deficiencies
in controls related to time and effort reports.
(Id.) The audit report outlined its methodology and findings in significant detail. (See id.
at 11-24.)
Plaintiff took a leave of absence under the Family and Medical Leave Act
(“FMLA”) from May until August of 2011. (Doc. 10 ¶ 25; Doc. No. 11 ¶ 21.) When
Plaintiff returned, Ms. Poats had received the audit results and informed Plaintiff on Aug.
16, 2011 that Plaintiff’s demotion to Senior Administrative Assistant in the Department
of Health & Kinesiology would be made permanent. (Doc. No. 31-4 at 3, 23.) Mr.
Wilson then assumed the CBA role on a permanent basis.3 (Id. at 3.) In his affidavit, Mr.
Cummings alleges that TSU did not follow the proper procedure when it demoted
Plaintiff, but he does not elaborate on that allegation. (Doc. No. 38-3 at 2.) Cummings
also opines that the decision to tap Mr. Wilson to replace Plaintiff was curious, given that
3
There is a discrepancy in the record as to whether this is so. Whereas Ms. Poats states in her affidavit that
Wilson assumed the CBA job permanently in August 2011, TSU’s Nov. 10, 2011 letter to the EEOC states
that “Mr. Wilson continues to serve in the ‘Interim’ position.” (See Doc. No. 35 at 24.) For reasons the
Court explains below, however, this discrepancy is not material.
4
Mr. Wilson was not hired from within the College of Education, which had generally
been required. (Id.)
Upon being demoted and reassigned, Plaintiff’s office was relocated to a
gymnasium that she reports contained mold and toxic gasses, which she says caused
serious adverse health effects. (Doc. No. 38-1 at 2.) Plaintiff was absent from work
regularly while assigned to the Health & Kinesiology department, missing as many as
forty-six of 202 work days in the 2011-2012 school year. (Doc. No. 31-4 at 3, 25-26.)
Early in that school year — on Sept. 6, 2011 — Plaintiff filed a Charge of
Discrimination with the Texas Workforce Commission Civil Rights Division and the
EEOC (“EEOC Charge”), alleging retaliation and sex and age discrimination. (Doc. No.
31-5 at 5.) She amended her EEOC Charge on Nov. 2, 2011 to include also claims of
race and color discrimination. (Id. at 4.) TSU responded in writing to the initial EEOC
Charge, denying any wrongdoing and explaining that Plaintiff had been demoted because
of “a number of financial/business related issues within the college.” (Doc. No. 35 at
18.) In addition to the previously outlined concerns, TSU noted that Ms. Poats had
recently discovered several donor checks in the CBA files, dating back to Ms. Taylor’s
tenure, which had not been deposited. (Doc. No. 35 at 18.) Ms. Taylor was issued an
EEOC Notice of Right to Sue on March 30, 2012. (Doc. No. 31-5 at 2-3.)
Plaintiff was ultimately terminated on June 19, 2012. (Doc. No. 31-2 at 20.)
TSU’s Notice of Termination stated that Plaintiff was being terminated “due to
excessive/chronic absenteeism and [her] failure to submit requested medical
documentation/certificate.” (Doc. No. 31-4 at 31.) Plaintiff filed suit in this Court in
June 2012 and amended her complaint in January 2013. (Doc. No. 1; Doc. No. 10.)
5
Plaintiff’s First Amended Complaint alleged that TSU’s employment decisions
constituted improper age, race, and gender discrimination and retaliation in violation of
numerous laws. Those included (i) Title VII of the Civil Rights Act of 1964, 42 U.S.C. §
2000e et seq.; (ii) the Texas Commission on Human Rights Act (“TCHRA”), Texas
Labor Code Chapter 21; (iii) the Texas Whistleblower Act, Texas Government Code
Chapter 554; and (iv) FMLA, 29 U.S.C. §2601 et seq. (Id. ¶¶ 3-6, 43-53.)
In its
Memorandum & Order dated June 20, 2013, the Court dismissed Plaintiff’s claims under
the TCHRA, the Texas Whistleblower Act, and the FMLA. (Doc. No. 30.) It also
dismissed Plaintiff’s age discrimination claim arising under federal law. (Id.) On July
22, TSU moved for summary judgment on all remaining claims. (Doc. No. 31.) The
Court heard argument on Sept. 10, at which time it gave both parties seven additional
days to submit supporting documentation.
II. LEGAL STANDARD
To grant summary judgment, the Court must find that the pleadings and evidence
show that no genuine issue of material fact exists, and therefore the movant is entitled to
judgment as a matter of law. Fed. R. Civ. P. 56. The party moving for summary
judgment must demonstrate the absence of any genuine issue of material fact; however,
the party need not negate the elements of the nonmovant’s case. Little v. Liquid Air
Corp., 37 F.3d 1069, 1075 (5th Cir. 1997). If the moving party meets this burden, the
nonmoving party must then go beyond the pleadings to find specific facts showing there
is a genuine issue for trial. Id. “A fact is material if its resolution in favor of one party
might affect the outcome of the lawsuit under governing law.” Sossamon v. Lone Star
State of Texas, 560 F.3d 316, 326 (5th Cir. 2009) (quotations and footnote omitted).
6
Factual controversies should be resolved in favor of the nonmoving party. Liquid
Air Corp., 37 F.3d at 1075. However, “summary judgment is appropriate in any case
where critical evidence is so weak or tenuous on an essential fact that it could not support
a judgment in favor of the nonmovant.” Id. at 1076 (internal quotations omitted).
Importantly, “[t]he nonmovant cannot satisfy his summary judgment burden with
conclusional allegations, unsubstantiated assertions, or only a scintilla of evidence.” Diaz
v. Superior Energy Services, LLC, 341 F. App’x 26, 28 (5th Cir. 2009) (citation omitted).
The Court should not, in the absence of proof, assume that the nonmoving party could or
would provide the necessary facts. Liquid Air Corp., 37 F.3d at 1075. As the Supreme
Court has noted, “[w]hen opposing parties tell two different stories, one of which is
blatantly contradicted by the record, so that no reasonable jury could believe it, a court
should not adopt that version of the facts for purposes of ruling on a motion for summary
judgment.” Scott v. Harris, 550 U.S. 372, 380 (2007).
III. ANALYSIS
TSU’s motion distinguishes between claims arising out of Plaintiff’s demotion
and claims arising out of her termination. At the outset, it is unclear whether Plaintiff has
even pleaded claims stemming from her termination. Plaintiff’s complaint lists several
ways in which she believes TSU retaliated against her, but does not include her
termination. (See Doc. No. 10, ¶¶ 48-53). With respect to her claims of race, gender, and
age discrimination, she pleaded that “defendant’s conduct” violates Title VII, and
because the Complaint’s description of defendant’s conduct includes terminating
Plaintiff, the Court will assume, as TSU does, that Plaintiff’s Title VII discrimination
claims arise, at least in part, out of her termination. TSU argues that Plaintiff has failed
7
to exhaust those claims. (Doc. No. 31 at 12.) In order to be precise in its discussion of
TSU’s actions, the Court first resolves whether procedural requirements dictate that it
focus only on Ms. Taylor’s demotion and not pass on Ms. Taylor’s termination.
A. Claims Arising Out of Termination
TSU moves for summary judgment on claims arising out of plaintiff’s termination
on the grounds that she failed to exhaust administrative remedies.
“Employment
discrimination plaintiffs must exhaust administrative remedies before pursuing claims in
federal court. Exhaustion occurs when the plaintiff files a timely charge with the EEOC
and receives a statutory notice of right to sue.” Taylor v. Books A Million, Inc., 296 F.3d
376, 378-79 (5th Cir. 2002) (citing Dao v. Auchan Hypermarket, 96 F.3d 787, 788-89
(5th Cir. 1996)). Plaintiffs must exhaust each alleged Title VII violation; the Supreme
Court has held that “[e]ach incident of discrimination and each retaliatory adverse
employment decision constitutes a separate actionable ‘unlawful employment practice.”
Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114 (2002). As such, “[e]ach
discrete discriminatory act starts a new clock for filing charges alleging that act.” Id. at
113.
Plaintiff’s 2011 demotion and 2012 termination were quite clearly separate and
distinct acts. As such, each required its own EEOC Charge. And yet, the EEOC Charge
that Plaintiff has brought to the Court’s attention was filed, and amended, well before
Plaintiff was terminated. (Doc. No. 31-5 at 4-5.) Because Plaintiff cannot point the
Court to any EEOC documentation relating to her termination, the Court must grant
defendant’s motion for summary judgment as to claims arising out of Plaintiff’s
8
termination.4 Cf. Simmons-Myers v. Caesars Entm’t Corp., 515 F. App’x 269, 273 (5th
Cir. 2013) (“Although Simmons-Myers made allegations of gender discrimination for
acts prior to her termination in her EEOC charge, discrete discriminatory acts are not
entitled to the shelter of the continuing violation doctrine. . . . Her termination was a
separate employment event for which Simmons-Myers was required to file a
4
Plaintiff does not argue that she was terminated in retaliation for filing a complaint with the EEOC. Had
she done so, Title VII’s exhaustion requirement would not prevent the Court from considering that claim.
The Fifth Circuit has held “that it is unnecessary for a plaintiff to exhaust administrative remedies prior to
urging a retaliation claim growing out of an earlier charge.” Gupta v. E. Texas State Univ., 654 F.2d 411,
414 (5th Cir. 1981). While the continuing vitality of the Gupta exception has been called into question, see
Simmons-Myers v. Caesars Entm’t Corp., 515 F. App’x 269, 273 n.1 (5th Cir. 2013) (“We note that Gupta
may no longer be applicable after the Supreme Court’s decision in [Morgan, 536 U.S. 101].”), for now it
remains the law of the Circuit that a claim alleging retaliation for the filing of an earlier EEOC charge need
not be separately exhausted.
Thus, the Court would proceed to analyzing whether Plaintiff had made out a prima facie case. To
establish a prima facie case of retaliation under Title VII, Taylor must show that “(1) she participated in an
activity protected by Title VII; (2) her employer took an adverse employment action against her; and (3) a
causal connection exists between the protected activity and the materially adverse action.” Aryain v. WalMart Stores Texas LP, 534 F.3d 473, 484 (5th Cir. 2008). With respect to that first prong, filing an EEOC
Charge is unquestionably protected activity. See Richardson v. Prairie Opportunity, Inc., 470 F. App’x
282, 286 (5th Cir. 2012). Likewise, there is little doubt that termination constitutes an adverse employment
action. Id. The key question before the Court, then, would be whether Plaintiff could show a causal
connection between her August 2011 EEOC charge and her June 2012 termination.
The Fifth Circuit has explained that “at the prima facie stage, ‘the standard for satisfying the
causation element is much less stringent than a but for causation standard.’ . . . [but] plaintiff must produce
some evidence of a causal link between the protected activity and the adverse employment action to
establish a prima facie case of retaliation.” Ackel v. Nat’l Commc’ns, Inc., 339 F.3d 376, 385 (5th Cir.
2003) (quoting Fierros v. Texas Dep’t of Health, 274 F.3d 187, 191 (5th Cir. 2001)). As such, “a plaintiff
need not prove that her protected activity was the sole factor motivating the employer’s challenged decision
in order to establish the ‘causal link’ element of a prima facie case.” Evans v. City of Houston, 246 F.3d
344, 354 (5th Cir. 2001) (internal citation and quotation marks omitted). “Close timing between an
employee’s protected activity and an adverse action against [her] may provide the ‘causal connection’
required to make out a prima facie case of retaliation.” Id. (quoting Swanson v. Gen. Servs. Admin., 110
F.3d 1180, 1188 (5th Cir. 1997)).” A lapse “of up to four months has been found sufficient to satisfy the
causal connection for summary judgment purposes.” Id. (citing Weeks v. NationsBank, N.A., CIV.A. 3:98CV-1352M, 2000 WL 341257 (N.D. Tex. Mar. 30, 2000)). On the other hand, the Fifth Circuit has held on
numerous occasions that a gap of more than seven months is insufficient on its own to give rise to an
“inference of a causal link.” Gibson v. Verizon Servs. Org., Inc., 498 F. App’x 391, 397 (5th Cir. 2012);
see also Harvey v. Stringer, 113 F. App’x 629, 631 (5th Cir. 2004) (“This Court has never held that a 10month time lapse, on its own, is sufficient to satisfy the causal connection for summary judgment
purposes.”).
Here, Plaintiff filed her EEOC charge on Aug. 29, 2011. (Doc. No. 31-5 at 5.) She amended that
complaint on Nov. 2, 2011. (Id. at 4.) She was presented with a Notice of Termination of Employment on
June 19, 2012. (Doc. No. 31-2 at 20.) Thus, even if the Court were to rely on the date of amendment rather
than the date of the initial EEOC filing, a solid seven-and-a-half months elapsed between the protected
activity and the adverse employment act. More evidence would be necessary to establish a causal link and
Plaintiff has not brought forth any. As such, the Court would grant summary judgment in favor of TSU.
9
supplemental claim, or at the very least, amend her original EEOC charge.” (internal
citations omitted)).
B. Claims Arising Out of Demotion
Plaintiff claims race and gender discrimination, as well as retaliation, in violation
of Title VII and age discrimination under Texas state law. The Court also addresses Title
VII color discrimination.
1. Gender Discrimination
Title VII of the Civil Rights Act of 1964 makes it unlawful for an employer to
discriminate against an employee based on the individual’s gender.
Intentional
discrimination can be proven by either direct or circumstantial evidence. Russell v.
McKinney Hosp. Venture, 235 F.3d 219, 222 (5th Cir. 2000). If the Title VII claims lack
direct evidence of discrimination, they will be analyzed according to the burden-shifting
framework established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411
U.S. 792, 802 (1973).
Under the McDonnell framework, the plaintiff must first establish a prima facie
case of discrimination. Id. at 802. To meet this burden, the plaintiff must show that she
“1) is a member of a protected class; 2) was qualified for her position; 3) was subjected to
an adverse employment action; and 4) was replaced by someone outside the protected
class, or that other similarly situated persons were treated more favorably.” Septimus v.
Univ. of Houston, 399 F.3d 601, 609 (5th Cir. 2005).
If the plaintiff succeeds in making the prima facie case, the burden shifts to the
defendant to produce evidence of a legitimate, nondiscriminatory reason for its treatment
of plaintiff. Id. If the defendant offers a nondiscriminatory reason, the burden shifts back
10
to the plaintiff to show that the employer’s reason for the disparate treatment is merely a
pretext for discrimination. Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 143
(2000).
Because Plaintiff was replaced by a man, TSU does not dispute that Plaintiff has
laid out a prima facie case of gender discrimination. The burden therefore shifts to TSU
to show a nondiscriminatory basis for its treatment of Plaintiff. “The burden on the
employer ‘is one of production, not persuasion; it can involve no credibility assessment.’”
Bright v. GB Bioscience Inc., 305 F. App’x 197, 202 (5th Cir. 2008) (quoting Reeves, 530
U.S. at 142).
“To meet this burden, the employer must show, through admissible
evidence, a legally sufficient reason” for its treatment of Plaintiff. Id. Defendant relies
upon an April 2011 letter from Ms. Poats to Plaintiff outlining a series of concerns with
Ms. Taylor’s performance, including late payments of invoice, failure to ensure that
certain university employees were paid, improper processing of travel documentation,
and failure to ensure that departments received the supplies they ordered. (Doc. No. 31-4
at 2, 6.) Likewise, TSU points to an internal audit identifying financial risks and a report
stating that the new College Business Administrator was put in place to rectify those
problems. (Doc. No. 31-3 at 11-24.) This evidence is more than sufficient to shift the
burden back to the Plaintiff to show that TSU’s purported non-discriminatory basis for
Plaintiff’s termination amounts to pretext.
A plaintiff may show pretext by “providing evidence that a discriminatory reason
more likely motivated the employer or that the employer’s proffered explanation is
unworthy of credence.” Bright, 305 F. App’x at 202 (citing Reeves, 530 U.S. at 143;
Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981)). With respect to the
11
latter, “[p]roof that the defendant’s explanation is unworthy of credence is simply one
form of circumstantial evidence that is probative of intentional discrimination, and it may
be quite persuasive. . . . In appropriate circumstances, the trier of fact can reasonably
infer from the falsity of the explanation that the employer is dissembling to cover up a
discriminatory purpose.” Reeves, 530 U.S. at 147. Thus, “plaintiff may avoid summary
judgment if [s]he creates a genuine dispute on the truth of the employer’s proffered
reasons for termination.” Richardson v. Prairie Opportunity, Inc., 470 F. App’x 282, 286
(5th Cir. 2012) (citing Septimus, 399 F.3d at 610).
Plaintiff appears to contend that TSU’s stated reason for demoting her lacks
credibility. But the evidence Plaintiff has brought forward does not support that claim.
First, she points to an affidavit from former Dean Cummings. (Doc. No. 38-3.) Mr.
Cummings speaks highly of Plaintiff’s performance at work and notes that “my
performance evaluations of Plaintiff speak for themselves.” (Id. at 1.) He opines that her
“demotion and eventual termination could not have been based on her work performance
in any way.” (Id.) He notes that as early as December 2010, Plaintiff reported the filing
of inaccurate time sheets and that other employees grew hostile to Ms. Taylor. (Id. at 2.)
He also explains that he found it unusual that Ms. Taylor was replaced by Mr. Wilson,
despite the fact that he was not hired from within the College of Education, which had
generally been required. (Id.) Mr. Cummings addresses the reports that Ms. Taylor had
failed to timely turn in paperwork related to the hiring of new employees. (Id.) He
explains that other departments and bureaucratic processes were also at least in part
responsible but that Ms. Taylor took the blame. Id.
12
Second, and related, Ms. Taylor points to her positive performance reviews. She
provides one review from 2008-2009 to complement Mr. Cummings’ summary of his
reviews. (Doc. No. 35 at 26.) Third, Ms. Taylor asserts that a meeting which defendant
claims took place on April 4, 2011 never actually happened. (See Doc. No. 38 at 14.)
Fourth, Plaintiff asserts that the auditor was told not to tell her about the audit. (Doc. No.
35 at 13.) Fifth, Plaintiff points to an affidavit from a former TSU colleague, Billy
Sellers.
(Doc. No. 38-4.)
Mr. Sellers says he witnessed Mr. Wilson behaving
inappropriately toward a student, reported it to Ms. Poats, and was told that he was
overreacting. He characterized this as “protection of [a] hand-picked employee.” (Id. at
2.) Mr. Sellers also states that another TSU employee referred to Ms. Taylor as “that old
lying Linda Taylor.” (Id. at 1.) Finally, Plaintiff has countered TSU’s characterizations
of the problems faced by the College in her April 2011 letter. (Doc. No. 35 at 9.)
At bottom, Plaintiff is unable to cast credible doubt on TSU’s stated basis for her
termination. Most of Plaintiff’s relevant summary judgment evidence goes to whether
she was rightly blamed for the College’s management problems. While the summary
judgment evidence does establish that others may have been partly responsible for some
of the problems with new employee paperwork — especially that related to new
employee hiring paperwork — it does not cast doubt on the existence of those problems,
nor suggest that Plaintiff played no role in them. Plaintiff’s informal April 2011 written
response to her demotion tends only to suggest that others deserve some of the blame.
(Doc. No. 35 at 9.) So too Plaintiff’s own deposition testimony. (Doc No. 40-1 at 7-12.)
Perhaps, if the relevant question was whether TSU had fairly allocated blame for the
problems with College of Education’s finances, Plaintiff would have some chance of
13
success. But it is not. Rather, the relevant inquiry is whether defendant’s “perception of
[Plaintiff’s] performance, accurate or not, was the real reason for her” demotion.
Shackelford v. Deloitte & Touche, LLP, 190 F.3d 398, 408-09 (5th Cir. 1999); see also
Lee v. Geithner, 825 F. Supp. 2d 852, 856 (S.D. Tex. 2011) (“The Fifth Circuit has long
held that an employer’s belief that an employee’s performance is inadequate, even if that
belief is incorrect, is a legitimate, nondiscriminatory reason and cannot establish the
existence of a pretext for discrimination.” (citing Mayberry v. Vought Aircraft Co., 55
F.3d 1086, 1091 (5th Cir. 1995))).
Thus, setting aside the evidence that goes to whether Plaintiff was fairly held
responsible for the College’s problems, Plaintiff is left with three other general categories
of evidence: evidence that Plaintiff had previously received positive performance
reviews, evidence that Plaintiff was demoted because she reported her colleagues’
wrongdoing and evidence relating to Mr. Wilson. With respect to the first, Plaintiff does
establish that as late as 2008-2009, she received positive reviews, but that alone does not
rebut TSU’s claim that serious problems later arose in her department. This is in keeping
with the Fifth Circuit’s general tendency not to allow strong performance reviews by one
supervisor to undercut the credibility of negative reviews by another. See, e.g., Franklin
v. Boeing Co., 232 F. App’x 408, 411 (5th Cir. 2007) (“The independent assessment of a
team leader regarding job performance does not raise an inference that [Plaintiff’s]
supervisor’s assessment was pretextual; it is only indicative of varying experiences with
[Plaintiff].”); Myers v. Michelin N. Am., Inc., 208 F.3d 1007 (5th Cir. 2000) (“[T]he
existence of positive comments concerning [Plaintiff’s] job performance in his
14
evaluations does not call into question the credence of [Defendant’s] proffered
explanation.”).
Second, as to Plaintiff reporting her colleagues’ wrongdoing, Plaintiff might be
her own worst enemy on this front. Even if the Court were to determine that Plaintiff had
demonstrated that her reports, and not the management woes, motivated TSU to demote
Plaintiff,5 this case would begin to look like one of “[t]he ‘rare’ instances in which a
showing of pretext is insufficient to establish discrimination” because “the record
conclusively reveals some other, nondiscriminatory reason for the employer’s decision.”
Laxton v. Gap Inc., 333 F.3d 572, 578-79 (5th Cir. 2003). Here, that reason would be
Ms. Taylor’s reports regarding financial malfeasance.
Finally, with respect to Mr.
Wilson, TSU’s treatment of Plaintiff’s replacement is simply irrelevant; it does nothing to
undercut the credibility of the University’s stated basis for Plaintiff’s demotion. In short,
Plaintiff has failed to demonstrate TSU’s basis for demoting Plaintiff is pretext. The
Court therefore must grant TSU’s motion with respect to this claim.
2. Race Discrimination
Title VII also prohibits discrimination on the basis on race.
Absent direct
evidence of discrimination, the Court resorts again to the McDonnell framework.
Plaintiff is an African-American woman and thus a member of protected class. But so
too is the individual who replaced her. (Doc. No. 31-5 at 4.) Plaintiff cannot, therefore,
state a prima facie case of race discrimination. The Court must grant TSU’s motion for
summary judgment on this claim.
5
To be clear, Plaintiff has not shown that it was her complaints that led to her demotion. For starters, TSU
stated that in its correspondence with the EEOC that Ms. Poats did not even know of Plaintiff’s reports
when Plaintiff was initially demoted. (Doc. No. 35 at 24.) Plaintiff has failed to rebut this evidence.
15
3. Color Discrimination
Ms. Taylor’s complaint does not allege discrimination on the basis of color. Her
Amended EEOC Charge did, though, and that would appear to be the more relevant
claim, given that she alleges that she was replaced by a darker-skinned African
American. Color discrimination is expressly recognized by the statute, see 42 U.S.C. §
2000e-2, yet there is hardly any Fifth Circuit case law on point. Courts outside this
Circuit that have considered claims of color discrimination have generally held that
“[c]olor discrimination arises when the particular hue of the plaintiff’s skin is the cause of
the discrimination, such as in the case where a dark-colored African-American individual
is discriminated against in favor of a light-colored African-American individual.” Bryant
v. Bell Atl. Maryland, Inc., 288 F.3d 124, 132 n.5 (4th Cir. 2002); see also Williams v.
Wendler, 530 F.3d 584, 587 (7th Cir. 2008) (“Light-skinned blacks sometimes
discriminate against dark-skinned blacks, and vice versa, and either form of
discrimination is literally color discrimination.”); Simmons-Blount v. Guilford Cnty. Bd.
of Educ., 1:06-CV-944, 2009 WL 962266, at *6 n.4 (M.D.N.C. Apr. 7, 2009)
(“Discrimination can be based on race if different races are involved, or on color if
members of the same race are involved, but not both.”); Govia v. Century 21, Inc., 140 F.
Supp. 2d 323, 324 (S.D.N.Y. 2001) (finding plaintiff’s allegation that “defendant gave
promotional preference to whites and ‘lighter skinned’ minorities, while discriminating
against him and other ‘darker skinned’ minorities on the basis of color” sufficient to state
a claim for Title VII employment discrimination).
For the Court to consider such a claim at this late stage of proceedings would
require that Plaintiff amend her Complaint, and Plaintiff has not made any showing that
16
she could satisfy Rule 16(b)’s “good cause” standard. Even if the Court were to consider
the substance of color discrimination claim, however, it would grant summary judgment
to TSU. Looking to the McDonnell framework, case law does not provide easy answers
to the question of what exactly constitutes a “protected class” in the context of color
discrimination, or even if that concept is relevant in this context. But there is no dispute
in the summary judgment evidence that Plaintiff is a light-skinned African American and
the individual who replaced her was a dark-skinned African American. (Doc. No. 31-5 at
4.) As such, the Court could assume, arguendo, that the first and fourth elements of a
prima facie case under McDonnell are satisfied. TSU appears not to contest that Plaintiff
was qualified for the position or that she was demoted, and that a demotion constitutes an
adverse employment action.6 As such, Plaintiff would be able to state a prima facie case
of color discrimination.
The analysis would then proceed just as it did above, under gender discrimination,
and Plaintiff’s claim ultimately would fail because she has not put forward evidence of
pretext.
4. Retaliation
Title VII “does not protect opposition to all forms of unscrupulous conduct.”
Brown v. United Parcel Serv., Inc., 406 F. App’x 837, 840 (5th Cir. 2010). Rather, Title
VII protects only opposition to discrimination based on “race, color, religion, sex, or
national origin.” Id. (citing 42 U.S.C. § 2000e–2(a)(1)). Thus, for the purposes of a
retaliation claim, “[p]rotected activity is defined as opposition to any practice rendered
unlawful by Title VII, including making a charge, testifying, assisting, or participating in
6
TSU makes these concessions in the context of Plaintiff’s claim of gender discrimination, but her
qualifications for the job and whether defendant took adverse employment actions would not change
depending on the specific discrimination at stake.
17
any investigation, proceeding, or hearing under Title VII.” Ackel, 339 F.3d at 385 (citing
Green v. Administrators of the Tulane Educational Fund, 284 F.3d 642, 657 (5th Cir.
2002)).
In short, unless Plaintiff can show that she was “opposing discrimination
directed against the plaintiff or third parties,” she cannot prevail on her retaliation claim.
1 Rothstein et. al, Employment Law § 2.11 (4th ed. 2013).
Plaintiff makes abundantly clear that she believes she was retaliated against for
reporting colleagues for filing falsified time sheets and committing other finance-related
wrong. Plaintiff’s claim founders, therefore, because she fails to allege that she was
retaliated against for engaging in conduct protected by Title VII. She does not allege —
or provide evidence suggesting — that she was retaliated against for claiming
discrimination. Nor is there is evidence to suggest that the falsified time sheets and
wrongful payments were a part of a larger scheme of discrimination that would violate
Title VII. Consequently, on Plaintiff’s claim of retaliation, the Court must grant TSU’s
Motion for Summary Judgment. It is entirely possible that Plaintiff faced retaliation in
the colloquial sense of the word, but the summary judgment evidence does not support
the claim that she faced retaliation in a manner that violates Title VII.
5. Age Discrimination
In its earlier Memorandum & Order, the Court noted that “a state age
discrimination claim would likely be foreclosed because Texas has not waived sovereign
immunity regarding claims under the TCHRA in federal courts.” (Doc. No. 30 at 10-11.)
The Court did not dismiss plaintiff’s state-law age discrimination claim at that time,
however, because TSU had not requested that it do so. Because Defendant now so
moves, the Court dismisses Plaintiff’s state-law age discrimination claim. See Hernandez
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v. Texas Dep’t of Human Servs., 91 F. App’x 934, 935 (5th Cir. 2004) (“The State of
Texas has waived its sovereign immunity in state courts for TCHRA violations. . . .
Texas’ waiver of sovereign immunity in its own courts, however, is not a waiver of its
Eleventh Amendment immunity in federal courts. . . . Indeed, the Eleventh Amendment
bars the adjudication of pendent state law claims against nonconsenting state defendants
in federal court.” (internal citations omitted)); see also Swanson v. R.R. Comm’n of
Texas, No. CIV.A. C-11-80, 2011 WL 2039601, at *5 (S.D. Tex. May 24, 2011) (“As
Defendant is a state agency, it is entitled to sovereign immunity in federal court for [age
discrimination] claims brought under the TCHRA.”).
IV. CONCLUSION
For the foregoing reasons, Defendant’s Motion for Summary Judgment is
GRANTED. The case is dismissed with prejudice.
IT IS SO ORDERED.
SIGNED at Houston, Texas on this 25th day of September, 2013.
KEITH P. ELLISON
UNITED STATES DISTRICT COURT JUDGE
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