Lindsey et al v. Harris County Constable's Office Precinct 3 et al
Filing
64
MEMORANDUM OPINION granting in part, denying in part 42 MOTION for Summary Judgment (Signed by Magistrate Judge Nancy K Johnson) Parties notified.(sjones, 4) (Main Document 64 replaced on 3/29/2017) (sjones, 4).
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
CORDELL LINDSEY, JR.,
and ROBERT L. WILSON,
§
§
§
§
§
§
§
§
§
§
Plaintiffs,
v.
HARRIS COUNTY, et al.,
Defendants.
CIVIL ACTION NO. H-15-630
MEMORANDUM OPINION
Pending before the court1 is Defendants Harris County, Ken
Jones (“Jones”), and John Ray Harrison’s (“Harrison”) Motion for
Summary Judgment (Doc. 42).
The court has considered the motion,
Plaintiffs Cordell Lindsey, Jr., (“Lindsey”) and Robert L. Wilson’s
(“Wilson”) response, all other relevant filings, and the applicable
law.
For the reasons set forth below, the court GRANTS IN PART AND
DENIES IN PART Defendants’ motion.
I.
Plaintiffs,
former
Case Background
officers
employed
by
Harris
County
Constable’s Office Precinct 3 (“Precinct 3”), filed this action
against defendants, alleging violations of Title VII of the Civil
Rights Act of 19642 (“Title VII”), 42 U.S.C. § 1981 (“Section
1981”), 42 U.S.C. § 1983 (“Section 1983”), the Age Discrimination
1
The parties consented to proceed before the undersigned magistrate
judge for all proceedings, including trial and final judgment, pursuant to 28
U.S.C. § 636(c) and Federal Rule of Civil Procedure 73. See Doc. 20, Ord. Dated
Aug. 27, 2015
2
See 42 U.S.C. §§ 2000e-2000e-17.
in Employment Act3 (“ADEA”), and the Fair Labor Standards Act4
(“FLSA”).
A.
Factual Background
Both Plaintiffs worked at Precinct 3 at the time of the events
underlying this action.
Defendant Jones was the Constable of
Precinct 3 throughout Plaintiffs’ tenures as employees.
The
parties submit a copious amount of evidence, much of it far afield
from what is at issue on summary judgment.5
1.
Plaintiff Lindsey
In early 2001, Plaintiff Lindsey, a black man, went to work
for Metropolitan Transit Authority of Harris County (“Metro”) as a
bus
driver
and,
shortly
thereafter,
for
Authority (“HHA”) as a fraud investigator.6
the
Houston
Housing
At that time, he had
over twenty years of experience in law enforcement, including three
years as Chief of Police at Texas Southern University.7
In his
position with HHA, Plaintiff Lindsey investigated complaints of
fraud such as unauthorized occupants, unreported income, and drug
3
See 29 U.S.C. §§ 621-634.
4
See 29 U.S.C. §§ 201-219
5
The court relies primarily on the affidavit and deposition testimony
of Plaintiffs Lindsey and Wilson to ascertain whether their claims can survive
summary judgment.
6
See Doc. 42-1, Ex. A to Defs.’ Mot. for Summ. J., Pl. Lindsey’s Dep.
p. 18.
7
Doc. 53-2, Ex. B to Pls.’ Resp. in Opp. to Defs.’ Mot. for Summ. J.,
Pl. Lindsey’s Decl. ¶ 2.
2
activities.8
officers
He
from
also
other
coordinated
law
the
enforcement
scheduling
of
off-duty
agencies
to
perform
surveillance or special security jobs for HHA.9
On August 14, 2001, he took a third job with Precinct 3 as a
reserve officer.10
On September 8 or 9, 2003, Plaintiff Lindsey
became a full-time employee of Precinct 3, while continuing to work
full time for HHA.11
He first served as a full-time relief deputy,
working two day shifts, two evening shifts, and one night shift
each week.12
While working the night shift, he was not provided
with backup when requested and was not invited to shift meetings.13
After
approximately
eight
months,
Plaintiff
Lindsey
was
assigned to the evening shift, which ran from 2 p.m. to 10 p.m.
five days a week.14
8
He worked that shift for the remainder of his
Doc. 42-1, Ex. A to Defs.’ Mot. for Summ. J., Pl. Lindsey’s Dep. pp.
22-23.
9
See id. pp. 23-25; Doc. 53-2, Ex. B to Pls.’ Resp. in Opp. to Defs.’
Mot. for Summ. J. ¶¶ 22-23.
10
See Doc. 42-1, Ex. A to Defs.’ Mot. for Summ. J., Pl. Lindsey’s Dep.
pp. 18-19.
11
See id. p. 19; Doc. 53-2, Ex. B to Pls.’ Resp. in Opp. to Defs.’ Mot.
for Summ. J., Pl. Lindsey’s Decl. ¶ 2.
12
Doc. 42-1, Ex. A to Defs.’ Mot. for Summ. J., Pl. Lindsey’s Dep. p.
29.
13
See Doc. 42-1, Ex. A to Defs.’ Mot. for Summ. J., Pl. Lindsey’s Dep.
pp. 64-65; Doc. 53-2, Ex. B to Pls.’ Resp. in Opp. to Defs.’ Mot. for Summ. J.,
Pl. Lindsey’s Decl. ¶ 5.
14
Doc. 42-1, Ex. A to Defs.’ Mot. for Summ. J., Pl. Lindsey’s Dep. p.
29.
3
tenure.15 At that time, Plaintiff Lindsey continued to work for the
HHA full time during the hours of 7 a.m. to 7 p.m. on Mondays and
Tuesdays and from 7 a.m. to 1 p.m. on Wednesdays, Thursdays and
Fridays.16
Plaintiff Lindsey filed a request with Precinct 3 to work for
HHA, and it was approved.17
He renewed the request once when
Precinct 3 enacted a new policy requiring renewal of approvals for
outside employment.18
Beyond those two instances, no one ever told
Plaintiff Lindsey that he needed to submit a new request every
ninety days.19
Plaintiff Lindsey reasoned, “Since I had been
working my job at HHA before I began working at Precinct 3, I did
not consider it an ‘extra job.’”20
In April 2006, Precinct 3 promoted Plaintiff Lindsey to the
rank of sergeant, without a corresponding pay increase.21
He did
not receive pay commensurate with the rank of sergeant until July
15
Id. pp. 29-30.
16
Id. p. 31; see also Doc. 53-2, Ex. B to Pls.’ Resp. in Opp. to Defs.’
Mot. for Summ. J., Pl. Lindsey’s Decl. ¶ 19.
17
See Doc. 42-1, Ex. A to Defs.’ Mot. for Summ. J., Pl. Lindsey’s Dep.
18
See id.
p. 88.
19
See Doc. 53-2, Ex. B to Pls.’ Resp. in Opp. to Defs.’ Mot. for Summ.
J., Pl. Lindsey’s Decl. ¶ 21.
20
Doc. 53-2, Ex. B to Pls.’ Resp. in Opp. to Defs.’ Mot. for Summ. J.,
Pl. Lindsey’s Decl. ¶ 21; see also Doc. 42-1, Ex. A to Defs.’ Mot. for Summ. J.,
Pl. Lindsey’s Dep. p. 88.
21
See Doc. 42-1, Ex. A to Defs.’ Mot. for Summ. J., Pl. Lindsey’s Dep.
p. 57; Doc. 53-2, Ex. B to Pls.’ Resp. in Opp. to Defs.’ Mot. for Summ. J., Pl.
Lindsey’s Decl. ¶ 3.
4
2009.22
In June 2008, Jon Moore (“Moore”) assigned Sergeant J.D.
Garland (“Garland”) to ride with Plaintiff Lindsey, explaining to
Plaintiff Lindsey that Garland was a racist and needed retraining.23
Moore also instructed Plaintiff Lindsey to set Garland’s schedule
so that he was off on Saturdays, Sundays, and Wednesday evenings so
that he could perform a second job as a preacher.24
follow
those
instructions,
Plaintiff
Lindsey
In order to
rescheduled
the
regular day off of a black officer, Sherman Eagleton (“Eagleton”).25
Plaintiff Lindsey complained that he believed Garland was given
more favorable treatment on the basis of his race.26
In March 2010, Precinct 3 promoted Plaintiff Lindsey to the
rank of lieutenant, again without a corresponding pay raise.27
At
no point in his employment with Precinct 3 did Plaintiff Lindsey
22
Doc. 53-2, Ex. B to Pls.’ Resp. in Opp. to Defs.’ Mot. for Summ. J.,
Pl. Lindsey’s Decl. ¶ 3.
23
See id. ¶ 8; Doc. 42-1, Ex. A to Defs.’ Mot. for Summ. J., Pl.
Lindsey’s Dep. pp. 37-38.
24
Doc. 53-2, Ex. B to Pls.’ Resp. in Opp. to Defs.’ Mot. for Summ. J.,
Pl. Lindsey’s Decl. ¶ 9; see also Doc. 42-1, Ex. A to Defs.’ Mot. for Summ. J.,
Pl. Lindsey’s Dep. pp. 36-37.
25
Doc. 42-1, Ex. A to Defs.’ Mot. for Summ. J., Pl. Lindsey’s Dep. p.
37; Doc. 53-2, Ex. B to Pls.’ Resp. in Opp. to Defs.’ Mot. for Summ. J., Pl.
Lindsey’s Decl. ¶ 9.
26
Doc. 53-2, Ex. B to Pls.’ Resp. in Opp. to Defs.’ Mot. for Summ. J.,
Pl. Lindsey’s Decl. ¶ 9.
27
See id. ¶ 3; Doc. 42-1, Ex. A to Defs.’ Mot. for Summ. J., Pl.
Lindsey’s Dep. p. 57.
5
ever receive pay commensurate with the rank of lieutenant.28
Plaintiff Lindsey remained a non-exempt employee throughout
his employment at Precinct 3 but never received formal training on
filling out timesheets.29
In 2009 or 2010, when Defendant Harris
County was in a financial bind, Defendant Jones put all officers on
a modified thirty-two-hour workweek.30
Defendant Jones informed
Plaintiff Lindsey and others in a supervisors’ meeting that the
officers were not to record overtime and that officers who worked
additional hours should be given compensatory time (“comp time”)
the following day.31
But, Plaintiff Lindsey testified, “[n]ine
times out of ten, the officers did not get to take the time off,
because the schedule would not permit [it].”32
Plaintiff Lindsey understood it to be the standard practice
throughout Precinct 3, even before the budget constraints, that
non-exempt employees were to record no more than eight hours of
work each day and forty hours each week, regardless of the number
of
hours
actually
worked.33
Plaintiff
Lindsey
followed
this
28
See Doc. 53-2, Ex. B to Pls.’ Resp. in Opp. to Defs.’ Mot. for Summ.
J., Pl. Lindsey’s Decl. ¶ 3.
29
Id. ¶¶ 10-11.
30
See Doc. 42-1, Ex. A to Defs.’ Mot. for Summ. J., Pl. Lindsey’s Dep.
p. 101.
31
See id.
32
Id. p. 106.
33
See id. p. 102; Doc. 53-2, Ex. B to Pls.’ Resp. in Opp. to Defs.’
Mot. for Summ. J., Pl. Lindsey’s Decl. ¶ 11.
6
understanding out of fear of “being retaliated against” and never
recorded hours in excess of eight per day or forty per week even
when he worked more hours.34
The extra hours accumulated when, for example, he received a
call late in his shift and worked beyond the end of his shift “to
close out the scene of the incident” or to complete the incident
report.35
As a supervisor, he worked extra hours when he stayed
until the officers who reported to him also completed their work.36
Other situations arose when he worked while off-duty.37
example,
he
“regularly
received
telephone
calls
and
For
e-mails
notifying [him] that [he] needed to attend to incidents that would
arise when [he] was off-duty.”38 He also attended community events,
such
as
parades,
funerals,
and
trail
rides,
outside
of
his
scheduled work time.39
When Plaintiff Lindsey claimed overtime for these assignments,
Moore told Plaintiff Lindsey to submit a new timesheet without the
extra time and to take comp time the following day at a one-for-one
34
Doc. 53-2, Ex. B to Pls.’ Resp. in Opp. to Defs.’ Mot. for Summ. J.,
Pl. Lindsey’s Decl. ¶ 12; see also id. ¶¶ 11, 13.
35
Id. ¶ 13(a); see also id. ¶ 13(b).
36
See id. ¶ 13(c).
37
See id. ¶ 13(d).
38
Id. ¶ 13(d).
39
See id. ¶ 13(e); Doc. 42-1, Ex. A to Defs.’ Mot. for Summ. J., Pl.
Lindsey’s Dep. p. 114.
7
hourly rate (“straight time”) rather than a time-and-a-half rate.40
Although he was promised double comp time as an incentive to work
holidays, he never received the premium rate.41 The management team
often told him when he needed to use the comp time, instead of
allowing him to choose the days when he wanted to use it.42
Plaintiff Lindsey’s opinion was that staffing levels did not play
a role in the management team’s decisions about when he could take
comp time.43
Out of fear of retaliation, Plaintiff Lindsey did not
complain about the comp-time practices.44
Defendant Jones’s brother, Gary Jones, was the bureau chief
over the patrol division for Precinct 3.45 Throughout the time that
Plaintiff Lindsey worked for Precinct 3, Gary Jones regularly told
Plaintiff
Lindsey
racial
jokes
that
Plaintiff
Lindsey
found
offensive.46 Plaintiff Lindsey never reported Gary Jones’s behavior
out of fear of retaliation and futility.47 Garland also told racial
40
See Doc. 42-1, Ex. A to Defs.’ Mot. for Summ. J., Pl. Lindsey’s Dep.
pp. 116-17; Doc. 53-2, Ex. B to Pls.’ Resp. in Opp. to Defs.’ Mot. for Summ. J.,
Pl. Lindsey’s Decl. ¶ 14.
41
See id. ¶ 15.
42
See id. ¶ 16.
43
See id.
44
See id. ¶ 17.
45
See id. ¶ 6.
46
See id. ¶ 7; Doc. 42-1, Ex. A to Defs.’ Mot. for Summ. J., Pl.
Lindsey’s Dep. pp. 43-44.
47
See Doc. 42-1, Ex. A to Defs.’ Mot. for Summ. J., Pl. Lindsey’s Dep.
p. 44; Doc. 53-2, Ex. B to Pls.’ Resp. in Opp. to Defs.’ Mot. for Summ. J., Pl.
Lindsey’s Decl. ¶ 7.
8
jokes, and Plaintiff Lindsey, who was Garland’s supervisor and
trainer, admonished him but did not report the behavior to anyone
else.48
Plaintiff Lindsey admonished another officer whom he
reported to Moore in 2009 or 2010 for making “disparaging racial
remarks about minorities and females.”49
Moore said that he would
take care of the matter, but Plaintiff Lindsey testified that the
racist comments continued until the officer was terminated.50
In 2012, Defendant Harrison, who was an Internal Affairs
Division (“IAD”) investigator, asked Plaintiff Lindsey to attend a
meeting regarding a complaint that had been filed against a black
officer who was not in Plaintiff Lindsey’s chain of command.51 When
Plaintiff Lindsey asked why he needed to attend, Defendant Harrison
said, “Because you’re a black supervisor.”52 In response, Plaintiff
Lindsey complained that he “felt used as a black person.”53
On April 23, 2013, Plaintiff Lindsey and HHA Asset Manager
Rick Johnson (“Johnson”) conducted an authorized search of an HHA
48
See Doc. 42-1, Ex. A to Defs.’ Mot. for Summ. J., Pl. Lindsey’s Dep.
pp. 38-39.
49
Id. p. 39.
50
See id. pp. 41-42.
51
See id. pp. 51-53.
52
See id. p. 52. The black officer against whom the complaint had been
filed served under a black supervisor. See id.
53
See id. p. 53.
9
property leased to Chassiedy Utley (“Utley”).54
Johnson found “a
number of things that were out of compliance in the property
including the presence of four . . . bags of marijuana,” contraband
of which Plaintiff Lindsey took possession “as a law enforcement
officer.”55
A later search by Harris County Constable’s Office
Precinct 6 (“Precinct 6”) officers and a canine unit found more
marijuana, as well as weapons and evidence that unauthorized
persons were residing at the property.56
The next day, a Precinct
6 officer delivered the seized property to Plaintiff Lindsey
without a property release form, and Plaintiff Lindsey delivered
all of the seized property to Precinct 3 that afternoon.57
Plaintiff Lindsey stated in the incident report that Utley was
home at the time of the initial search when, in fact, Plaintiff
Lindsey and Johnson entered the property in the presence of Utley’s
friend whose possessions were found at the residence.58
Plaintiff
Lindsey stated, “I had drafted the report in this way because I
wanted to use the report as an investigative tool to assist me in
54
Doc. 53-2, Ex. B to Pls.’ Resp. in Opp. to Defs.’ Mot. for Summ. J.,
Pl. Lindsey’s Decl. ¶ 25; see also Doc. 42-1, Ex. A to Defs.’ Mot. for Summ. J.,
Pl. Lindsey’s Dep. pp. 161-68.
55
Doc. 53-2, Ex. B to Pls.’ Resp. in Opp. to Defs.’ Mot. for Summ. J.,
Pl. Lindsey’s Decl. ¶ 25; see also Doc. 42-1, Ex. A to Defs.’ Mot. for Summ. J.,
Pl. Lindsey’s Dep. pp. 161-68, 174-76.
56
Doc. 53-2, Ex. B to Pls.’ Resp. in Opp. to Defs.’ Mot. for Summ. J.,
Pl. Lindsey’s Decl. ¶ 26.
57
Id. ¶ 27.
58
Id. ¶ 28.
10
questioning Ms. Utley about whether the marijuana was hers.”59 When
Plaintiff Lindsey questioned Utley and her friend, the friend
admitted that the marijuana belonged to him, and he was taken into
custody.60
Plaintiff Lindsey then accessed his initial report to
make changes that reflected the actual basis for gaining entrance
to Utley’s residence and clarified to whom the seized marijuana
belonged.61
Defendant Harrison notified Plaintiff Lindsey in person that
Utley filed a complaint62 against him based on his treatment of her
at the interview.63
Plaintiff Lindsey received a written notice of
the complaint, which also informed him that he would have to resign
from HHA by the end of the month or face termination from Precinct
3.64 At a meeting in mid-May 2013, which Plaintiff Lindsey attended
with his attorney, Defendant Harrison stated that he had determined
59
Id.; see also Doc. 42-1, Ex. A to Defs.’ Mot. for Summ. J., Pl.
Lindsey’s Dep. pp. 98, 169.
60
See Doc. 42-1, Ex. A to Defs.’ Mot. for Summ. J., Pl. Lindsey’s Dep.
p. 98; Doc. 53-2, Ex. B to Pls.’ Resp. in Opp. to Defs.’ Mot. for Summ. J., Pl.
Lindsey’s Decl. ¶ 29.
61
See Doc. 42-1, Ex. A to Defs.’ Mot. for Summ. J., Pl. Lindsey’s Dep.
pp. 98, 170-71; Doc. 53-2, Ex. B to Pls.’ Resp. in Opp. to Defs.’ Mot. for Summ.
J., Pl. Lindsey’s Decl. ¶ 30.
62
This was the first complaint that Plaintiff Lindsey had received
during his employment at Precinct 3. See Doc. 53-2, Ex. B to Pls.’ Resp. in Opp.
to Defs.’ Mot. for Summ. J., Pl. Lindsey’s Decl. ¶ 31.
63
See id.; Doc. 42-1, Ex. A to Defs.’ Mot. for Summ. J., Pl. Lindsey’s
Dep. pp. 75-76, 85-86.
64
See Doc. 42-1, Ex. A to Defs.’ Mot. for Summ. J., Pl. Lindsey’s Dep.
pp. 85-86; Doc. 53-2, Ex. B to Pls.’ Resp. in Opp. to Defs.’ Mot. for Summ. J.,
Pl. Lindsey’s Decl. ¶ 31.
11
Utley’s complaint was groundless.65 Instead of discussing the Utley
complaint, Defendant Harrison asked about Plaintiff Lindsey’s
changes to the Utley incident report and about the timesheets of
another Precinct 3 officer who had contracted with HHA.66
Because
Plaintiff Lindsey had not been given prior notice, he refused to
any questions on those issues.67
Plaintiff Lindsey told Defendant Harrison that Plaintiff
Lindsey “felt that [he] was being told that [he] had to give up
[his] job with HHA because of [his] race and that [he] was opposed
to
such
discriminatory
treatment
since
non-African
American
officers were allowed to have jobs when they were not at Precinct
3 and even had their Precinct 3 schedules adjusted to accommodate
the other jobs that they held.”68
Defendant Harrison responded
that, if he found any wrongdoing in the investigation of the new
allegations, he going to put Plaintiff Lindsey’s “black ass in
65
See Doc. 42-1, Ex. A to Defs.’ Mot. for Summ. J., Pl. Lindsey’s Dep.
pp. 96, 97; Doc. 53-2, Ex. B to Pls.’ Resp. in Opp. to Defs.’ Mot. for Summ. J.,
Pl. Lindsey’s Decl. ¶ 32.
66
See Doc. 42-1, Ex. A to Defs.’ Mot. for Summ. J., Pl. Lindsey’s Dep.
p. 96; Doc. 53-2, Ex. B to Pls.’ Resp. in Opp. to Defs.’ Mot. for Summ. J., Pl.
Lindsey’s Decl. ¶ 32.
67
See Doc. 42-1, Ex. A to Defs.’ Mot. for Summ. J., Pl. Lindsey’s Dep.
p. 96; Doc. 53-2, Ex. B to Pls.’ Resp. in Opp. to Defs.’ Mot. for Summ. J., Pl.
Lindsey’s Decl. ¶ 32.
68
Doc. 53-2, Ex. B to Pls.’ Resp. in Opp. to Defs.’ Mot. for Summ. J.,
Pl. Lindsey’s Decl. ¶ 33; see also Doc. 42-1, Ex. A to Defs.’ Mot. for Summ. J.,
Pl. Lindsey’s Dep. pp. 91-92.
12
jail.”69
A week later, on May 24, 2013, Defendant Jones terminated
Plaintiff Lindsey “immediately.”70 In the written notice, Defendant
Jones stated, “After reviewing [the IAD report on the Utley
complaint,] I believe you have failed to adhere to numerous
policies of this department[,] mainly your duties that are set out
in General Order 200-8 ‘Supervisors Responsibility.’”71
Plaintiff
Lindsey referred to this reason for termination as vague and
suggested that Defendant Jones “tried to make it sound like
[Plaintiff Lindsey] was being terminated because [he] had refused
to answer questions concerning the complaint filed by Ms. Utley
during [the] May 16th meeting with [Defendant] Harrison,” despite
Defendant’s Harrison’s statement at the meeting that he had already
determined the complaint to be groundless.72
Plaintiff Lindsey was
not allowed a chance to respond to the allegations that formed the
69
Doc. 42-1, Ex. A to Defs.’ Mot. for Summ. J., Pl. Lindsey’s Dep. p.
76; Doc. 53-2, Ex. B to Pls.’ Resp. in Opp. to Defs.’ Mot. for Summ. J., Pl.
Lindsey’s Decl. ¶ 33.
70
Doc. 53-2, Ex. B to Pls.’ Resp. in Opp. to Defs.’ Mot. for Summ. J.,
Pl. Lindsey’s Decl. ¶ 34; see also Doc. 53-4, Ex. D to Pls.’ Resp. in Opp. to
Defs.’ Mot. for Summ. J., Decl. of David J. Quan, Attach. 3, Letter from Def.
Jones to Pl. Lindsey Dated May 24, 2013.
71
Doc. 53-4, Ex. D to Pls.’ Resp. in Opp. to Defs.’ Mot. for Summ. J.,
Decl. of David J. Quan, Attach. 3, Letter from Def. Jones to Pl. Lindsey Dated
May 24, 2013; see also Doc. 53-2, Ex. B to Pls.’ Resp. in Opp. to Defs.’ Mot. for
Summ. J., Pl. Lindsey’s Decl. ¶ 34.
72
Doc. 53-2, Ex. B to Pls.’ Resp. in Opp. to Defs.’ Mot. for Summ. J.,
Pl. Lindsey’s Decl. ¶ 34; see also Doc. 53-4, Ex. D to Pls.’ Resp. in Opp. to
Defs.’ Mot. for Summ. J., Decl. of David J. Quan, Attach. 3, Letter from Def.
Jones to Pl. Lindsey Dated May 24, 2013.
13
basis for his termination.73
Approximately one month after his termination, Plaintiff
Lindsey was indicted for tampering with a government record based
on
the
Utley
incident
report.74
The
Harris
County
District
Attorney’s office added two additional charges in the subsequent
months.75
The assistant district attorney (“ADA”) persisted in
seeking a plea agreement, but Plaintiff Lindsey refused, stating
that “[he] had not done anything criminal and [he] wanted to be
fully exonerated.”76
In the fall of 2014, the ADA threatened to file charges
against
Plaintiff
Lindsey’s
daughter
“based
on
trumped-up
allegations that were not related to the charges against [him].”77
Plaintiff Lindsey testified, “I was forced to accept the [DA’s]
‘plea bargain’ to accept guilty pleas to the tampering with
government document case . . . and another charge in exchange for
the dismissal of the third case against me and the [DA’s] agreement
to not prosecute my daughter.”78
Plaintiff Lindsey agreed to
73
See Doc. 53-2, Ex. B to Pls.’ Resp. in Opp. to Defs.’ Mot. for Summ.
J., Pl. Lindsey’s Decl. ¶ 36.
74
See id. ¶ 37.
75
See id.
76
See id. ¶ 38.
77
Id. ¶ 39.
78
Id. ¶ 41; see also Doc. 42-1, Ex. A to Defs.’ Mot. for Summ. J., Pl.
Lindsey’s Dep. pp. 188-90.
14
surrender his peace-officer license.79
At the time of the DA’s
efforts to secure a plea agreement, Plaintiff Lindsey affirmed, he
had already filed this action.80
2.
Plaintiff Wilson
Plaintiff Wilson, a black man, worked as a corrections officer
from 1983 to 1998.81
In 1990, he graduated from the police academy
and began working as a reserve peace officer in Fort Bend County
Precinct 2, followed by employment with the Kendleton Police
Department and the Harris County Constable’s Office Precinct 7
(“Precinct 7”) while continuing as a corrections officer.82
In
1998, Plaintiff Wilson began a trucking business and then left
corrections.83
In 1999, he returned to Precinct 7 as a reserve officer and
left there to become a reserve officer at Precinct 3 in May 2001.84
In July 2002, Plaintiff Wilson began working for Precinct 3 as a
79
See Doc. 42-1, Ex. A to Defs.’ Mot. for Summ. J., Pl. Lindsey’s Dep.
p. 188; Doc. 53-2, Ex. B to Pls.’ Resp. in Opp. to Defs.’ Mot. for Summ. J., Pl.
Lindsey’s Decl. ¶ 42.
80
See Doc. 53-2, Ex. B to Pls.’ Resp. in Opp. to Defs.’ Mot. for Summ.
J., Pl. Lindsey’s Decl. ¶ 43.
81
See Doc. 42-10, Ex. J to Defs.’ Mot. for Summ. J., Pl. Wilson’s Dep.
82
See id. pp. 10-12, 14.
83
See id. pp. 14-15.
84
See id. p. 17.
p. 9.
15
full-time officer.85
reserve
officer
with
He left Precinct 3 in 2009 and became a
Patton
returning to Precinct 7.86
Village
Police
Department
before
He returned to the employment of
Precinct 3 as a reserve officer in 2010 and became a full-time
officer in January 2011.87
While working for Precinct 3, Plaintiff Wilson also worked for
HHA, as a compliance observer.88
Plaintiff Wilson initially filed
a request to work for HHA but did not file renewal requests every
ninety days because “everybody knew where I worked, and it wasn’t
a big issue until now.”89
Throughout his second tenure at Precinct 3, Plaintiff Wilson
remained at the rank of deputy, although he “regularly performed
supervisor duties and other responsibilities for a rank higher than
Deputy.”90
When he received certification as Master Peace Officer,
85
See id. pp. 18-19; Doc. 53-1, Ex. A to Pls.’ Resp. in Opp. to Defs.’
Mot. for Summ. J., Pl. Wilson’s Decl. ¶ 2.
86
See Doc. 42-10, Ex. J to Defs.’ Mot. for Summ. J., Pl. Wilson’s Dep.
p. 19.
87
See id. pp. 20-21; Doc. 53-1, Ex. A to Pls.’ Resp. in Opp. to Defs.’
Mot. for Summ. J., Pl. Wilson’s Decl. ¶ 2.
88
See Doc. 42-10, Ex. J to Defs.’ Mot. for Summ. J., Pl. Wilson’s Dep.
p. 111; Doc. 53-2, Ex. B to Pls.’ Resp. in Opp. to Defs.’ Mot. for Summ. J., Pl.
Lindsey’s Decl. ¶ 24.
89
Doc. 42-10, Ex. J to Defs.’ Mot. for Summ. J., Pl. Wilson’s Dep. pp.
111-12.
90
See Doc. 53-1, Ex. A to Pls.’ Resp. in Opp. to Defs.’ Mot. for Summ.
J., Pl. Wilson’s Decl. ¶ 3; but see Doc. 42-10, Ex. J to Defs.’ Mot. for Summ.
J., Pl. Wilson’s Dep. p. 52 (indicating that, in 2009, Plaintiff Wilson was
demoted from Sergeant to Deputy as discipline after the IAD investigated into a
complaint filed against him).
16
Gary Jones informed him that he would not receive the pay raise
normally associated with that achievement until later.91
Plaintiff
Wilson was not paid at the higher end of the pay range for his
rank.92
In 2011, Plaintiff Wilson was assigned to the overnight shift
under the command of Jasen Rabalais (“Rabalais”).93
While working
on that shift, Plaintiff Wilson did not receive assistance when he
requested it.94
over
the
radio
On one occasion, Plaintiff Wilson heard Rabalais
direct
the
other
officers
not
to
respond
to
Plaintiff Wilson’s request “as they needed to take their meal
break.”95
Plaintiff Wilson remained a non-exempt employee throughout the
relevant employment period but never received formal training on
filling out timesheets.96
He was informed that he was eligible to
receive overtime pay if he worked for more than forty hours in a
91
See Doc. 53-1, Ex. A to Pls.’ Resp. in Opp. to Defs.’ Mot. for Summ.
J., Pl. Wilson’s Decl. ¶ 3.
92
See id. ¶ 4.
93
See id. ¶ 5.
94
See id.; Doc. 42-10, Ex. J to Defs.’ Mot. for Summ. J., Pl. Wilson’s
Dep. pp. 153-54.
95
Doc. 42-10, Ex. J to Defs.’ Mot. for Summ. J., Pl. Wilson’s Dep. pp.
151-52; Doc. 53-1, Ex. A to Pls.’ Resp. in Opp. to Defs.’ Mot. for Summ. J., Pl.
Wilson’s Decl. ¶ 5.
96
See Doc. 53-1, Ex. A to Pls.’ Resp. in Opp. to Defs.’ Mot. for Summ.
J., Pl. Wilson’s Decl. ¶¶ 7-8.
17
workweek.97
However,
he
understood
the
standard
practice
at
Precinct 3 was that non-exempt employees were to record no more
than eight hours of work each day and forty hours each week,
regardless of the number of hours actually worked.98
Plaintiff
Wilson followed this understanding out of fear of “being retaliated
against” and never recorded hours in excess of eight per day and
forty per week even when he worked more hours than that.99
The extra hours accumulated when, for example, he received
calls while off-duty to respond to a neighborhood disturbance
between 12:00 midnight and 2:00 a.m.100
Responding to such a call
took Plaintiff Wilson one to two hours.101
He also was asked to
represent Precinct 3 at meetings in minority communities that were
scheduled when he was off duty and to cover calls in minority areas
outside his regular assignments.102
Additionally, Plaintiff Wilson
was assigned a marked vehicle that he took home, and, during his
work commute, he was required to respond to calls and to handle any
97
See id. p. 7.
98
See id. ¶ 9; Doc. 42-10, Ex. J to Defs.’ Mot. for Summ. J., Pl.
Wilson’s Dep. pp. 108-09, 137.
99
Doc. 53-1, Ex. A to Pls.’ Resp. in Opp. to Defs.’ Mot. for Summ. J.,
Pl. Wilson’s Decl. ¶¶ 9, 10.
100
See id. ¶ 10(a).
101
See id.
102
See id. ¶¶ 10(b), 10(c).
18
incidents he encountered en route to and from work.103
He was told
by his supervisor Joe Eaglin, as well as Terry Ganey, Gary Jones,
and Moore not to record any of this work on the timesheet.104
Plaintiff Wilson also attended community events, such as
parades, funerals, and trail rides, outside of his scheduled work
time.105
He was told that he would receive comp time for these
events.106
Plaintiff Wilson received comp time for some of the
extra work, but not the full amount that he was due.107
Although he
was promised double pay or equivalent comp time as an incentive to
work holidays, he never received the premium rate of pay or comp
time.108
The management team often told him when he was to use the
comp time, instead of allowing him to choose the day when he wanted
to use it.109
Plaintiff Wilson’s opinion was that staffing levels
did not play a role in the management team’s decisions about when
he could take comp time.110
Out of fear of retaliation, Plaintiff
103
See id. ¶ 10(e); Doc. 42-10, Ex. J to Defs.’ Mot. for Summ. J., Pl.
Wilson’s Dep. pp. 71-72, 108-09.
104
See Doc. 53-1, Ex. A to Pls.’ Resp. in Opp. to Defs.’ Mot. for Summ.
J., Pl. Wilson’s Decl. ¶¶ 10(a), 10(b), 10(c), 10(e).
105
See id. ¶ 10(d).
106
See id.
107
See id. ¶ 12.
108
See id. ¶ 11.
109
See id. ¶ 12.
110
See id.
19
Wilson did not complain about the comp-time practices.111
At
his
deposition,
Plaintiff
Wilson
explained
how
he
understood he should complete his timesheets:
[W]hen I first came there, they would allow you to work
overtime until you get [sic] roughly a hundred hours of
comp time, then they will [sic] tell you you can’t put it
on your time sheet anymore. So after that, everything
you worked, all they wanted you to put on there was a
straight eight-hour shift. And sometimes they would call
and ask me to come in the morning a little earlier, and
sometimes they would tell me to take off earlier. But my
time sheets still showed two to ten or six to two or
whatever.
. . . .
A lot of times they owe[d] me hours and that’s when I
could remind them that I wanted to take off some of this
time you owe me that I have something going on. And they
would tell me I could take off, and my time sheet would
still show that I worked for Harris County.112
He opined, “[Y]ou can’t really rely on Precinct 3 time sheets.
They are not dependable.”113
Gary Jones told Plaintiff Wilson “a number of offensive racial
‘jokes’” during his second period of employment.114
Plaintiff
Wilson said that he also heard Bob Wooten (“Wooten”) tell a story
about a call he had in 1969 and used the term “colored,” which
111
See id. ¶ 13.
112
Doc. 42-10, Ex. J to Defs.’ Mot. for Summ. J., Pl. Wilson’s Dep. pp.
129, 132.
113
Id. p. 140.
114
Doc. 53-1, Ex. A to Pls.’ Resp. in Opp. to Defs.’ Mot. for Summ. J.,
Pl. Wilson’s Decl. ¶ 6; see also Doc. 42-10, Ex. J to Defs.’ Mot. for Summ. J.,
Pl. Wilson’s Dep. p. 86.
20
offended Plaintiff Wilson.115
Periodically, Wooten referred to
Plaintiff Wilson as “boy.”116
According to Plaintiff Wilson,
Rabalais also made comments about neighborhoods and prisoners that
Plaintiff Wilson understood to be racially discriminatory.117
In June 2008, Plaintiff Wilson received a written warning for
“working apartment security for a free room,” which “was being used
as a meeting place for females.”118
In July 2008, Plaintiff Wilson
received another written warning for not attending an assigned
meeting because he was working an extra job.119
served
as
a
deputy
at
Precinct
3,
Plaintiff
Also, while he
Wilson
was
the
recipient of complaints by several women about his behavior toward
them.120
One of the complaints led to an IAD investigation that
resulted in his demotion from sergeant to deputy and transfer to
another patrol location.121
On June 26, 2009, according to a report filed by another
deputy, Plaintiff Wilson received a call at 9:35 p.m., which he
returned at 9:45 p.m. and advised the complainant, whom he knew
115
See Doc. 42-10, Ex. J to Defs.’ Mot. for Summ. J., Pl. Wilson’s Dep.
pp. 83-84.
116
Id. p. 155.
117
See id. pp. 150-51, 153-54.
118
Id. p. 41.
119
See id. pp. 45-46.
120
See id. pp. 28-29, 32-40.
121
See id. p. 52.
21
personally, to wait to call the precinct until after Plaintiff
Wilson’s shift ended at 10:00 p.m. because Plaintiff Wilson was
already home.122
On June 29, 2009, Plaintiff Wilson resigned from
his position with Precinct 3, citing personal reasons in his
written
resignation.123
At
his
deposition,
Plaintiff
Wilson
testified that, although he disagreed with the other deputy’s
account of what happened on June 26, 2009, he resigned under threat
of indictment by one of the precinct chiefs for refusing to take
that call.124
Plaintiff Wilson returned to full-time employment at Precinct
3
in
January
2011.125
In
June
2011,
Plaintiff
Wilson
was
disciplined for going home sick without notifying anyone.126
On April 16, 2013, Plaintiff Wilson met with a investigator
from the Harris County District Attorney’s office and an ADA, who
informed Plaintiff Wilson that they had “found almost a hundred
hours of conflicts between [his] County payroll and the Housing
Authority payroll . . . over a two-year period.”127
Shortly after
that interview, Precinct 3 changed Plaintiff Wilson’s assignments,
122
See id. pp. 49-50.
123
See id. p. 56.
124
See id. pp. 56-57.
125
See id. pp. 21-22.
126
See id. pp. 73-74.
127
Id. p. 62.
22
and he “had to pull double duty again.”128
In the spring of 2013, Moore directed Plaintiff Wilson to quit
his contract position with the HHA.129
Plaintiff Wilson expressed
his concern that he was being treated less favorably than non-black
officers, but he quit as directed.130
Within a month of that
complaint, Plaintiff Wilson was terminated because he had been
indicted on the charge of theft by public servant on the basis that
the time he reported working for Precinct 3 overlapped with time he
reported working for HHA.131
stating
the
reasons
for
He was not given a written notice
his
termination,
was
not
given
an
opportunity to respond, and was not allowed to resign in lieu of
termination.132
Defendant
Jones
designated
Plaintiff
Wilson’s
termination as a “Dishonorable Discharge” but promised Plaintiff
128
Id. pp. 68-69.
129
See id. pp. 99-100; Doc. 53-1, Ex. A to Pls.’ Resp. in Opp. to Defs.’
Mot. for Summ. J., Pl. Wilson’s Decl. ¶ 16.
130
See Doc. 42-10, Ex. J to Defs.’ Mot. for Summ. J., Pl. Wilson’s Dep.
p. 99; Doc. 53-1, Ex. A to Pls.’ Resp. in Opp. to Defs.’ Mot. for Summ. J., Pl.
Wilson’s Decl. ¶ 16.
131
See Doc. 53-1, Ex. A to Pls.’ Resp. in Opp. to Defs.’ Mot. for Summ.
J., Pl. Wilson’s Decl. ¶¶ 17, 18; but see Doc. 53-4, Ex. D to Pls.’ Resp. in Opp.
for Defs.’ Mot. for Summ. J, Decl. of David J. Quan, Attach. 2, Indictment
(stating that Plaintiff Wilson was indicting for, by virtue of his status as a
public servant, “appropriat[ing], by acquiring and otherwise exercising control
over property, namely, cash money, owned by Lance Gilliam, with the intent to
deprive Lance Gilliam of said property, and cash money, owned by Curt Weller,
with the intent to deprive Curt Weller of said property” in a total amount
between $500 and $1500 cf. Doc. 53-4, Ex. D to Pls.’ Resp. in Opp. for Defs.’
Mot. for Summ. J., Decl. of David J. Quan, Attach. 1, Separation of Licensee
(indicating June 25, 2013, as the date of separation).
132
See Doc. 53-1, Ex. A to Pls.’ Resp. in Opp. to Defs.’ Mot. for Summ.
J., Pl. Wilson’s Decl. ¶ 17.
23
Wilson that he could be reinstated if he was found not guilty.133
Although the ADA pressured Plaintiff Wilson to enter a plea
bargain and implicate Plaintiff Lindsey as complicit in Plaintiff
Wilson’s submission of conflicting timesheets,
refused.134
Plaintiff Wilson
On May 19-20, 2015, Plaintiff Wilson’s case went to
trial.135 Based on evidence from Precinct 3 commanders and officers
that “it was a standard operating practice for officers at Precinct
3 to submit time sheets that did not accurately reflect the hours
that they worked,” the jury returned a verdict of not guilty.136
Nevertheless,
Defendant
Jones
refused
to
change
the
designation of Plaintiff Wilson’s discharge on a form filed with
the Texas Commission on Law Enforcement.137
During negotiations
with Defendant Jones after this lawsuit had been filed, he agreed
to change the designation if Plaintiff Wilson dismissed this
action.138
At an administrative hearing appealing the designation
of his termination, Defendant Jones conceded that no evidence
supported the “Dishonorable Discharge” designation in light of the
133
See id. ¶¶ 21, 24; Doc. 53-4, Ex. D to Pls.’ Resp. in Opp. for Defs.’
Mot. for Summ. J., Decl. of David J. Quan, Attach. 1, Separation of Licensee.
134
See Doc. 53-1, Ex. A to Pls.’ Resp. in Opp. to Defs.’ Mot. for Summ.
J., Pl. Wilson’s Decl. ¶ 19.
135
See id. ¶ 20.
136
Id.
137
See id. ¶ 22.
138
See id.
24
not-guilty verdict and agreed to change it.139
continued
to
deny
Plaintiff
Wilson
Defendant Jones
reinstatement
based
on
information learned after the criminal trial regarding Plaintiff
Wilson’s working as a security guard while working as a reserve
deputy for Precinct 3 in early January 2011.140
B.
Procedural Background
Plaintiffs Lindsey and Wilson filed charges of discrimination
with the Equal Employment Opportunity Commission (“EEOC”) on March
19, 2014, and April 7, 2014, respectively.141
The EEOC sent Lindsey
a Right to Sue letter dated December 10, 2014, and sent Wilson a
Right to Sue letter dated February 5, 2015.142
Plaintiffs filed this lawsuit against Defendants on March 10,
2015.143
Both Plaintiffs alleged race discrimination, hostile work
environment, and retaliation pursuant to Title VII and Sections
1981 and 1983, and Plaintiff Lindsey alleged age discrimination and
retaliation pursuant to the ADEA.144
amended
their
collective
complaint,
action
claim
adding
against
139
See id. ¶ 23.
140
See id. ¶ 25.
141
See Doc. 1, Pls.’ Compl. p. 2.
142
See Doc. 1, Pls.’ Compl. p. 3.
143
See Doc. 1, Pls.’ Compl.
144
See id. pp. 6-9.
25
On June 24, 2015, Plaintiffs
factual
detail
Defendant
and
Harris
an
County
FLSA
and
Defendant Jones in his official capacity based on the failure to
properly compensate Plaintiffs for overtime.145
Plaintiffs also
clarified in the case style that the suit was against Defendants
Jones
and
Harrison
capacities.146
complaint,
in
both
their
individual
and
official
Defendants filed an answer to the first amended
asserting
statutory
damages
caps,
estoppel,
and
governmental, sovereign, and qualified immunity as defenses.147
On October 2, 2015, Plaintiffs filed a motion to conditionally
certify a collective action.148
On November 5, 2015, Plaintiffs
filed a second amended complaint to make word changes to the facts
supporting the FLSA claim, for example, changing “work period” to
“work week without being due overtime pay,”
the proposed class description.149
and making changes to
On November 6, 2015, the court
denied Plaintiffs’ motion to certify because Plaintiffs failed to
show either that there was a policy or plan to deny all officers
overtime
compensation
or
that
the
potential
class
contained
145
See Doc. 3, Pls.’ 1st Am. Compl. pp. 9-11.
In the amendment,
Plaintiffs sued Precinct 3 in addition to Harris County. See id. p. 2. On July
23, 2015, Precinct 3 filed a motion to dismiss on the basis that it lacked the
legal capacity to sue or be sued. See Doc. 8, Precinct 3’s Mot. to Dismiss. On
August 14, 2015, Plaintiffs notified the court that they were unopposed to the
motion, and the court dismissed Precinct 3. See Doc. 16, Pls.’ Statement of NonOpp. to Precinct 3’s Mot. to Dismiss; Doc. 17, Ord. Dated Aug. 14, 2015.
146
Doc. 3, Pls.’ 1st Am. Compl. p. 1.
147
See Doc. 9, Defs.’ Ans. p. 3.
148
See Doc. 21, Pls.’ Mot. to Conditionally Certify Collective Action
& Authorize Notice to Putative Class.
149
Compare Doc. 3, Pls.’ 1st Am. Compl. p. 5 with Doc. 30, Pls.’ 2nd Am.
Compl. p. 5.
26
similarly situated individuals.150
On January 20, 2016, Defendant Harrison filed a motion for
summary judgment.151
In April 2016, with permission of the court,
Plaintiffs filed a third amended complaint to add allegations
concerning
Wilson’s
criminal
trial
and
Defendants’
allegedly
retaliatory actions in response to the trial results.152
On the
same day that the court granted leave to file the third amended
complaint, Defendants filed an answer to Plaintiffs’ second amended
complaint, asserting the same defenses pled in their answer to
Plaintiffs’ first amended complaint with the addition of afteracquired evidence supporting the terminations.153
On May 20, 2016, Defendants collectively filed a motion for
summary judgment.154
The court granted Plaintiffs an additional
twenty days to respond.155 After resolving a discovery dispute, the
court granted Plaintiffs another extension of time to respond to
Defendants’ motion for summary judgment.156
At the hearing on the
150
See Doc. 31, Mem. Op. Dated Nov. 6, 2015.
151
See Doc. 33, Def. Harrison’s Mot. for Summ. J.
152
See Doc. 38, Pls.’ 3rd Am. Compl. pp. 9, 13. Plaintiffs, without
explanation, also reverted back to the use of the term “work period” in place of
“work week without being due overtime pay,” a change they had made in the second
amended complaint. Compare id. p. 5 with Doc. 30, Pls.’ 2d Am. Compl. p. 5.
153
See Doc. 40, Defs.’ Ans. to Pls.’ 2d Am. Compl. p. 3.
154
See Doc. 42, Defs.’ Mot. for Summ. J.
155
Doc. 46, Ord. Dated June 3, 2016.
156
See Doc. 50, Min. Entry Ord. Dated June 23, 2016; Doc. 52, Ord. Dated
June 27, 2016.
27
discovery dispute, the court mooted Defendant Harrison’s earlierfiled motion for summary judgment without objection of any party.157
On July 6, 2016, Plaintiffs filed their responsive brief to
Defendants’ motion for summary judgment, and, on July 25, 2016,
Defendants
replied
and
filed
summary judgment evidence.158
joint
objections
to
Plaintiffs’
On August 22, 2016, Plaintiffs filed
a surreply with leave of court.159
The court now takes the pending motion for summary judgment
under consideration, beginning with Defendants’ objections to
Plaintiffs’ summary judgment evidence.
II.
Objections to Summary Judgment Evidence
A party must support its factual positions on summary judgment
by citing to particular evidence in the record.
Fed. R. Civ. P.
56(c)(1). Federal Rule of Civil Procedure 56(c)(2) allows a movant
to object to exhibits that “cannot be presented in a form that
would be admissible in evidence” under the Federal Rules of
Evidence.
Only relevant evidence is admissible.
Fed. R. Evid. 402.
Relevant evidence has a “tendency to make a fact more or less
157
See Doc. 50, Min. Entry Ord. Dated June 23, 2016.
158
See Doc. 53, Pls.’ Resp. in Opp. to Defs.’ Mot. for Summ. J.; Doc.
58, Defs.’ Reply to Pls.’ Resp. to Defs.’ Mot. for Summ. J.; Doc. 59, Defs.’ Jt.
Objs. to Pls.’ Summ. J. Evid.
159
See Doc. 60, Pls.’ Mot. for Leave to File Surreply; Doc. 62, Ord.
Dated Aug. 11, 2016; Doc. 63, Pls.’ Surreply to Defs.’ Reply to Pls.’ Opp. to the
Mot. for Summ. J.
28
probable than it would be without the evidence” and relates to a
fact “of consequence in determining the action.”
401.
Fed. R. Evid.
Affidavits supporting summary judgment “must be made on
personal knowledge, set out facts that would be admissible in
evidence, and show that the affiant or declarant is competent to
testify on the matters stated.”
Conclusory
allegations,
Fed. R. Civ. P. 56(c)(4).
unsubstantiated
assertions,
inferences, and speculation are not competent evidence.
Allstate
Indem.
Co.,
476
F.
App’x
778,
780
improbable
Roach v.
(5th
Cir.
2012)(unpublished)(citing S.E.C. v. Recile, 10 F.3d 1093, 1097 (5th
Cir. 1993)).
Hearsay is not admissible evidence.
Fed. R. Evid. 802.
Hearsay is a statement, not made while testifying in the current
litigation, that is offered for “the truth of the matter asserted
in the statement.”
Fed. R. Evid. 801.
Statements offered against
an opposing party that were made by “the party’s agent or employee
on a matter within the scope of that relationship” and statements
“by the party in an individual or representative capacity” are not
hearsay.
Fed. R. Evid. 801(d)(2).
The Federal Rules of Evidence
also list twenty-nine exceptions to the rule against hearsay. Fed.
R. Evid. 803-804, 807.
Although conclusory allegations, unsubstantiated assertions,
improbable
inferences,
and
speculation
are
not
admissible,
a
party’s subjective belief itself is not excluded under the Rules of
29
Evidence and may be relevant.
Whether subjective belief is
admissible, for example to show motivation, is a different issue
from whether it alone is sufficient evidence to
defeat summary
judgment, which it is not. Cf. Rodriquez v. Wal-Mart Stores, Inc.,
540 F. App’x 322, 327 (5th Cir. 2013)(unpublished)(“An employee’s
subjective belief is insufficient to establish discriminatory
motive.”)(citing Douglass v. United Servs. Auto. Ass’n, 79 F.3d
1415, 1430 (5th Cir. 1996), superseded by statute on other grounds
by 28 U.S.C. § 636(b)(1)); Delaval v. PTech Drilling Tubulars,
L.L.C., 824 F.3d 476, 480 (5th Cir. 2016)(quoting EEOC v. La. Office
of Cmty. Servs., 47 F.3d 1438, 1448 (5th Cir. 1995), overruled on
other grounds)(“A ‘subjective belief of discrimination . . . cannot
be the basis of judicial relief.’”).
A party cannot defeat summary judgment by introducing an
affidavit that impeaches, without explanation, prior deposition
testimony.
S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 495
(5th Cir. 1996); see also Copeland v. Wasserstein, Perella & Co.,
278 F.3d 472, 482 (5th Cir. 2002)(requiring an explanation when the
only evidence creating a genuine issue of material fact to avoid
summary judgment is an affidavit that conflicts with deposition
testimony).
Both
sides
challenge
evidence
submitted
by
the
other.
Defendants object to portions of Plaintiffs’ affidavits on the
bases that they contain hearsay, they are conclusory and self-
30
serving statements that are not based on personal knowledge, and/or
they contradict Plaintiffs’ prior sworn testimony.
Plaintiffs did
not respond to these objections.
The court has reviewed all of the statements in Plaintiffs
Lindsey and Wilson’s declarations to which Defendants objected on
the basis of hearsay and found that all are admissible. Several of
the identified statements that the court finds admissible are not
offered for the truth of the matters asserted, and others are
attributable to Defendant Jones or other members of the command
staff of Precinct 3.160
hearsay definition.
All such statements fall outside the
Defendants’ objections based on hearsay are
OVERRULED.
The court has reviewed all of the statements in Plaintiffs
Lindsey and Wilson’s declarations to which Defendants objected on
the basis that they contain conclusory and self-serving statements
or subjective beliefs that are not based on personal knowledge and
found that all except those listed below are admissible.
The
statements below are inadmissible because they lack the foundation
for Plaintiff Lindsey or Plaintiff Wilson’s personal knowledge, the
foundation is not obvious, and the only apparent possible sources
are
hearsay
and/or
speculation.
To
the
extent
that
other
statements in the declarations include subjective beliefs for the
160
The declarant is not always identified in the statements to which
Defendants objected; however, the clear implication is that the information was
provided to Plaintiff Lindsey, Plaintiff Wilson, or both by a supervisor or
someone in the chain of command.
31
purpose
of
raising
a
fact
issue
on
the
ultimate
issue
of
discrimination or retaliation, the court disregards them entirely
in the summary judgment analysis.
The following statements are
inadmissible:
Plaintiff Lindsey
•
“[I]t was well-known that Chief Rabalais often said that ‘no
n[-----] will ever be allowed to be assigned to night
shift.’”161
•
“This led to employees having to report the number of hours
worked without actually fully knowing how many hours that they
had worked that pay period.”162
•
“The Precinct 3 management team knew that officers were
working many hours beyond their scheduled shift, and expected
its non-exempt officers to not fully report the time in which
they were working.”163
•
“Both HHA and Precinct 3 were aware of the fact that I was
working both jobs throughout the time that I was working for
Precinct 3.”164
Plaintiff Wilson
•
“However, I knew that non-African American officers were not
required to wait until they received such increases to their
compensation.”165
•
“I knew that while I worked for Precinct 3 that non-African
American officers who had similar or less experience and
161
Doc. 53-2, Ex. B to Pls.’ Resp. in Opp. to Defs.’ Mot. for Summ. J.,
Pl. Lindsey’s Decl. ¶ 5.
162
Id. ¶ 11.
163
Id. ¶ 18.
164
Id. ¶ 20.
165
Doc. 53-1, Ex. A to Pls.’ Resp. in Opp. to Defs.’ Mot. for Summ. J.,
Pl. Wilson’s Decl. ¶ 3.
32
performance than me were being paid more money.”166
•
“It was well known that Chief Rabalais had told others that he
did not like having ‘n[******]’ work on the night shift while
he was in charge.”167
•
“Most of the officers at Precinct 3 held other jobs that they
did when they were not working their duties for Precinct 3.
While there was a form to obtain approval for extra jobs, it
was not enforced and I knew that most of the officers did not
update their approval requests.”168
•
“I knew that no non-African American officers were asked to
give up their outside jobs and some had their Precinct 3
schedules adjusted so that their outside jobs could be
accommodated.”169
Defendants’ objections based on lack of personal knowledge are
SUSTAINED IN PART AND OVERRULED IN PART.
Defendants argue that the following two statements made by
Plaintiff Wilson in his declaration contradict his deposition
testimony to the effect that he had no personal knowledge whether
others recorded time worked over their shift on their timesheets:170
•
“Furthermore, while working at Precinct 3, it was the standard
practice throughout the Precinct for all of the non-exempt
officers to record having worked eight (8) hours each day and
forty (40) hours each workweek, even if more hours were worked
on a particular day or in that workweek.”171
166
Id. ¶ 4.
167
Id. ¶ 5.
168
Id. ¶ 15.
169
Id. ¶ 16.
170
See Doc. 42-10, Ex. J to Defs.’ Mot. for Summ. J., Pl. Wilson’s Dep.
p. 110.
171
Doc. 53-1, Ex. A to Pls.’ Resp. in Opp. to Defs.’ Mot. for Summ. J.,
Pl. Wilson’s Decl. ¶ 9.
33
•
“Because it was the standard practice to not report all of the
hours worked in a day or in a workweek, I worked many hours
‘off the clock.’”172
Plaintiff Wilson’s declarations refer to a standard practice at
Precinct 3 that overtime hours were not to be recorded.
His lack
of knowledge whether other officers followed that practice does not
mean that they did not follow it.
In other words, Plaintiff
Wilson’s declaration speaks to the generally known expectations of
the command staff, not the behavior of the other officers.
Plaintiff Wilson’s declaration does not contradict his deposition
testimony.
Defendants’
objections
to
these
statements
are
OVERRULED.
Plaintiffs object to Defendants’ submission, in reply to
Plaintiffs’ response, of the affidavit of Brian L. Rose (“Rose”),
a Harris County ADA.173
Defendants did not respond to these
objections.
In his affidavit, Rose explained that the dates stamped as the
filed date on Plaintiff Wilson and Nick Langanke’s (“Langanke”)174
indictments were the respective dates that the grand jury returned
172
Id. ¶ 10.
173
Plaintiffs also object to Defendants’ submission of new evidence,
including both Rose’s affidavit and Harrison’s supplemental affidavit.
As
Plaintiffs have had the opportunity to respond to the additional evidence, the
court will not strike the affidavits on the basis that they were not previously
submitted.
174
Langanke was a non-African-American Precinct 3 employee who was
indicted during the time Plaintiff Wilson was an employee and to whom Plaintiff
Wilson points as a similarly situated individual who was treated differently.
34
the indictment and the indictments were made public.175
further
explained
that
both
indictments
also
listed
Rose
a
date
prepared, referencing the date that the secretary drafted the
indictment, which did “not trigger any publicizing of the pending
investigation or impending presentation to the grand jury.”176
According to Rose’s testimony, Langanke’s indictment was not made
public until October 31, 2006.177
Plaintiffs argue that Rose’s affidavit should be excluded
because Defendants did not disclose Rose as a witness, because
Rose’s testimony is not based on personal information concerning
the
specific
indictment
at
issue,
and
because
Rose
was
not
identified as an expert witness and, even if he had been, expert
witness affidavits are not competent summary judgment evidence
because they are not based on personal knowledge.
The court disagrees with Plaintiffs on all accounts.
With
regard to the summary judgment process, Rose’s affidavit was
presented as rebuttal testimony and may be considered.
Should
Defendants wish to have him testify at trial, they will need to
include him on the trial witness list.
Rose’s testimony was based
on personal knowledge of the customs and practice of the Harris
County District Attorney’s Office.
The testimony did not include
175
See Doc. 58-3, Ex. C to Defs.’ Reply to Pls.’ Resp. to Defs.’ Mot.
for Summ. J., Aff. of Rose.
176
Id.
177
See id.
35
opinion testimony, as in that provided by an expert.
Plaintiffs’
objections are OVERRULED.178
III.
Summary Judgment Standard
Summary judgment is warranted when the evidence reveals that
no genuine dispute exists on any material fact and the moving party
is entitled to judgment as a matter of law.
Fed. R. Civ. P. 56(a);
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Stauffer v.
Gearhart, 741 F.3d 574, 581 (5th Cir. 2014).
A material fact is a
fact that is identified by applicable substantive law as critical
to the outcome of the suit.
Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986); Ameristar Jet Charter, Inc. v. Signal
Composites, Inc., 271 F.3d 624, 626 (5th Cir. 2001). To be genuine,
the dispute regarding a material fact must be supported by evidence
such that a reasonable jury could resolve the issue in favor of
either party.
See Royal v. CCC & R Tres Arboles, L.L.C., 736 F.3d
396, 400 (5th Cir. 2013)(quoting Anderson, 477 U.S. at 248).
The movant must inform the court of the basis for the summary
judgment motion and must point to relevant excerpts from pleadings,
depositions, answers to interrogatories, admissions, or affidavits
that demonstrate the absence of genuine factual issues.
Celotex
Corp., 477 U.S. at 323; Topalian v. Ehrman, 954 F.2d 1125, 1131
178
As explained in the remainder of this memorandum, the court finds
that whether Langanke was a similarly situated non-black employee who was treated
more favorably than Plaintiff Wilson under nearly identical circumstances is a
genuine issue of material fact. Rose’s testimony will be helpful to the jury in
deciding that fact but fails to definitively resolve the issue in Defendants’
favor.
36
(1992).
If the moving party carries its burden, the nonmovant may
not rest on the allegations or denials in his pleading but must
respond with evidence showing a genuine factual dispute. Stauffer,
741 F.3d at 581 (citing Hathaway v. Bazany, 507 F.3d 312, 319 (5th
Cir. 2007)).
III. Analysis
Defendants seek summary judgment on all of Plaintiffs’ claims.
Defendants contend that Plaintiffs cannot establish liability for
race discrimination and retaliation, hostile work environment, age
discrimination, or violations of the FLSA.
Defendants Jones and
Harrison also raise qualified immunity and challenge the claims
against them in their individual capacities.
Plaintiffs respond by arguing that genuine issues of material
fact exist to prevent summary judgment on their race-discrimination
claims of wrongful termination, discriminatory pay, and retaliation
and on their FLSA claim for overtime pay.
However, Plaintiffs do
not discuss Defendants’ arguments on hostile work environment or
age discrimination.
Nor do they address qualified immunity or
individual capacity.
In Defendants’ reply, Defendants point out
Plaintiffs’ failure to address the above-mentioned portions of
Defendants’ motion.
Although Plaintiffs filed a surreply, they
again did not mention hostile work environment, age discrimination,
qualified immunity, or individual capacity.
Accordingly, the court finds that Plaintiffs abandoned the
37
claims of hostile work environment and age discrimination.
Also,
Defendants Jones and Harrison are entitled to qualified immunity on
the Section 1983 claims of employment discrimination pursuant to
Section 1981 because Plaintiffs failed to present evidence to
counter Defendants Jones and Harrison’s assertions of qualified
immunity. See McClendon v. City of Columbia, 305 F.3d 314, 323 (5th
Cir.
2002)(citing
Behrens
v.
Pelletier,
516
U.S.
299,
309
(1996))(stating that a plaintiff cannot rest on his allegations
when the adjudication of qualified immunity occurs on summary
judgment but must present evidence that qualified immunity does not
apply).
Furthermore, Plaintiffs’ failure to address the arguments
that Defendants Jones and Harrison cannot be held liable in their
individual capacities reflects Plaintiffs’ concession that they
cannot
maintain
the
employment-discrimination
claims
against
Defendants Jones and Harrison in their individual capacities.
The remaining claims are Plaintiffs’ Title VII and Section
1981 claims of wrongful termination, discriminatory compensation,
and
retaliation
against
Defendants
Harris
County
and
against
Defendants Jones and Harrison in their official capacities and
Plaintiffs’ FLSA claims against Defendants Harris County and Jones
in his official capacity.179
Claims against Defendants Jones and
Harrison in their official capacities are the same as against
179
Defendants argue that Defendant Harrison does not fall within the
FLSA’s definition of “employer.” Plaintiffs did not assert an FLSA claim against
Defendant Harrison. See Doc. 30, Pls.’ 2nd Am. Compl. p. 3.
38
Defendant Harris County. See Goodman v. Harris Cty., 571 F.3d 388,
395 (5th Cir. 2009).
Thus, summary judgment should be granted in
favor of Defendants Jones and Harrison as to all claims. Defendant
Harris County is the only remaining defendant on all of the claims.
A.
Discrimination
Title
VII
prohibits
employers
from
refusing
to
hire,
terminating, or otherwise “discriminat[ing] against any individual
with respect to his compensation, terms, conditions, or privileges
of employment, because of such individual’s race, color, religion,
sex, or national origin.”
provides
an
additional
Section 1981180
42 U.S.C. § 2000e-2(a).
avenue
of
recourse
for
persons
experience discrimination in employment because of race.
who
See 42
U.S.C. § 1981; Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369,
383 (2004).
Both
types
discrimination
of
must
claims
be
share
because
the
of
central
an
theme
identified
that
the
protected
characteristic. Both types of claims also share the same rubric of
analysis.
See Dilworth v. Continental Constr. Co., 282 F. App’x
330, 332 (5th Cir. 2008)(unpublished)(quoting Raggs v. Miss. Power
& Light Co., 278 F.3d 463, 468 (5th Cir. 2002))(“Claims of racial
discrimination brought under Title VII or [Section] 1981 are
180
Section 1981 prohibits racial discrimination in the making or
enforcing of contracts. 42 U.S.C. § 1981(a). As defined by the statute, the
phrase “make and enforce contracts” includes “the making, performance,
modification, and termination of contracts, and the enjoyment of all benefits,
privileges, terms, and conditions of the contractual relationship.” 42 U.S.C.
§ 1981(b).
39
considered ‘under the same rubric of analysis’”); Meinecke v. H &
R
Block
of
Houston,
66
F.3d
77,
83
(5th
Cir.
1995)(citing
cases)(“The same evidentiary procedure for allocating burdens of
proof applies to discrimination claims under both statutes.”).
A plaintiff may prove a discrimination claim either through
direct or circumstantial evidence.
Russell v. McKinney Hosp.
Venture, 235 F.3d 219, 222 (5th Cir. 2000).
In the absence of
direct evidence, courts analyze discrimination claims under the
burden-shifting approach first articulated in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973), and modified in Desert Palace,
Inc. v. Costa, 539 U.S. 90 (2003), and Rachid v. Jack In The Box,
Inc., 376 F.3d 305 (5th Cir. 2004).
Douglas
approach,”
a
plaintiff
Under this “modified McDonnell
may
trigger
a
presumption
discrimination by establishing a prima facie case.
of
Rachid, 376
F.3d at 312.
Once a plaintiff has established a prima facie case, the
burden
shifts
to
the
defendant
to
nondiscriminatory reasons for its actions.
Chem. Co.,
F.3d
proffer
legitimate,
Alkhawaldeh v. Dow
, 2017 WL 1018340, at *2 (5th Cir. Mar. 15,
2017)(slip copy). If the defendant satisfies this burden, then the
onus is back on the plaintiff to establish pretext.
1.
See id.
Termination
A prima facie case of discriminatory termination based on
disparate treatment requires the plaintiff to show that he: 1) is
40
a member of a protected class; 2) was qualified for his position;
3) suffered an adverse employment action; and 4) “was treated less
favorably than others similarly situated outside of his protected
class.”
Id.
“The ‘similarly situated’ prong requires a Title VII
claimant to identify at least one coworker outside of his protected
class who was treated more favorably ‘under nearly identical
circumstances.’” Id. (quoting Lee v. Kan. City S. Ry. Co., 574 F.3d
253, 259 (5th Cir. 2009)).
hold
the
same
job
If the identified comparator does not
position,
does
not
have
the
same
work
responsibilities, does not report to the same supervisor, or does
not have a similar history of infringements, his more favorable
treatment was not under nearly identical circumstances. See id. at
259-60.
However,
“identical.”
“nearly
identical”
is
not
synonymous
with
Lee, 574 F.3d at 260.
The first three elements of the prima facie case are not in
issue here.
The dispute is whether Plaintiffs were treated less
favorably than similarly situated non-black employees with regard
to their terminations.
a.
Plaintiff Lindsey
Plaintiff Lindsey identified Ray Lacy (“Lacy”) as an officer
whom the IAD investigated and found to have tampered with official
documents.181
181
However, he was not charged and was allowed to resign
See Doc. 42-1, Ex. A to Defs.’ Mot. for Summ. J., Pl. Lindsey’s Dep.
pp. 45-46.
41
rather than be terminated.182
Plaintiff Lindsey and Ray Lacy were both officers who were
accused of tampering with an official document but were treated
differently.
This is sufficient evidence to raise a question of
fact on the fourth element of the prima facie case.183
b.
Plaintiff Wilson
Plaintiff Wilson identified Langanke as a similarly situated
officer who was accused of “double dipping,” as in recording
certain hours at both Precinct 3 and an extra job.184
Langanke was
the subject of an investigation and was indicted on the charge of
theft by public servant.185
According to Wilson, Precinct 3 did not
fire Langanke but let him retire or resign without designating his
separation as dishonorable.186
that
Defendant
Harris
The separation paperwork indicated
County
terminated
designation “Generally Discharged.”187
182
Langanke
under
the
The explanation of the
See id.
183
As the court finds that Lacy provides a similarly situated non-black
employee who was arguably treated more favorably than Plaintiff Lindsey, the
court need not make rulings on Plaintiff Lindsey’s allegations that Garland,
Casey Dobbins, and Bobby Thurman were comparators who were also treated more
favorably.
184
See Doc. 42-10, Ex. J to Defs.’ Mot. for Summ. J., Pl. Wilson’s Dep.
185
See id.; Doc. 42-6, Ex. 22 to Defs.’ Mot. for Summ. J., Langanke
p. 87.
Indictment.
186
See Doc. 42-10, Ex. J to Defs.’ Mot. for Summ. J., Pl. Wilson’s Dep.
p. 87.
187
Doc. 42-6, Ex. 23 to Defs.’ Mot. for Summ. J., Report of Separation
of Licensee Langanke.
42
designation
stated
the
he
“left
the
agency
while
under
investigation for a criminal violation or in lieu of disciplinary
action including suspension, demotion or termination.”188
Plaintiff Wilson and Langanke were investigated and indicted
for the same felony charge.
As suggested by Plaintiff Wilson, the
narrative on Langanke’s separation paperwork is ambiguous as to
whether Langanke was actually terminated or was simply allowed to
resign.
Additionally,
Langanke
designation of separation.
was
given
a
more
favorable
This is sufficient evidence to raise a
question of fact on the fourth element of the prima facie case.189
2.
Compensation
A claim of discriminatory compensation requires proof that the
plaintiff is a member of a protected class and that he is paid less
than another employee not within the protected class for work
“requiring substantially the same responsibility.”
Taylor v.
United Parcel Serv., Inc., 554 F.3d 510, 522 (5th Cir. 2008).
The
plaintiff must show that his circumstances are “nearly identical”
to the more highly paid employee.
a.
Plaintiff
188
Id. at 523.
Plaintiff Lindsey
Lindsey
identified
Rabalais
and
Casey
Dobbins
Id.
189
As the court finds that Langanke provides a similarly situated nonblack employee who was arguably treated more favorably than Plaintiff Wilson, the
court need not make rulings on Plaintiff Wilson’s allegations that Dobbins,
William McMorrow, and Jose Zamudio were comparators who were also treated more
favorably.
43
(“Dobbins”) as non-black officers who, unlike Plaintiff Lindsey,
received increases in pay when they were promoted.190
Plaintiff
Lindsey further testified that Rabalais’ certification was at the
basic level, whereas Plaintiff Lindsey possessed a master peace
officer certificate.191
Plaintiff Lindsey also stated that the
management team took his field training officer (“FTO”) pay and
gave it to Dobbins when Dobbins was promoted to sergeant.192
Plaintiff Lindsey confronted Gary Jones, who said, “I’m promoting
you to lieutenant and I’m taking your FTO pay and I’m giving it to
Dobbins because we’re promoting him to sergeant.”193
The evidence includes salary histories for Plaintiffs and
other officers.194
Even if the salary histories were sufficient to
raise a question on discrepancies in pay, they do not provide
sufficient evidence of nearly identical circumstances in terms of
training, work responsibilities, discipline histories, and other
areas.
However, Plaintiff Lindsey’s testimony to the effect that
Rabalais and Dobbins received pay raises upon promotion when
Plaintiff
Lindsey
did
not
does
allow
for
an
inference
of
190
Doc. 42-1, Ex. A to Defs.’ Mot. for Summ. J., Pl. Lindsey’s Dep. p.
191
See id.
192
See id. p. 68.
193
Id. p. 69.
33.
194
See Doc. 53-4, Ex. D to Pls.’ Resp. in Opp. to Defs.’ Mot. for Summ.
J., Decl. of David J. Quan, Attach. 4, Current Employees’ Change of Status
Histories.
44
discriminatory treatment under nearly identical circumstances.
This is sufficient evidence to raise a question of fact on
discriminatory pay.
b.
Plaintiff Wilson
Plaintiff
Wilson
identified
Dobbins,
Jeremy
McCaffrey
(“McCaffrey”), Garland, and Kevin Taylor (“Taylor”) as similarly
situated individuals who were paid more than he was with lesser
qualifications.195
Plaintiff Wilson stated that, based on what he
knew about Dobbins prior work history, it did not appear that
Dobbins had any prior experience in law enforcement.196
Plaintiff Wilson relies on the salary histories, which, as
previously stated, do not raise a fact issue on nearly identical
circumstances.
Plaintiff Wilson’s own testimony is too thin to
clear the “nearly identical” bar.
Plaintiff Wilson fails to raise a fact issue on discriminatory
compensation.
3.
Pretext
Plaintiffs agree that Defendant Harris County’s explanation
for Plaintiffs’ terminations is sufficient to satisfy the burden of
producing legitimate, nondiscriminatory reasons for its actions but
argue
that
195
the
evidence
raises
questions
on
pretext.
See Doc. 42-10, Ex. J to Defs.’ Mot. for Summ. J., Pl. Wilson’s Dep.
pp. 22-24.
196
fact
See id. p. 22.
45
Plaintiffs identified Gary Jones, Garland, Moore, and Wooten as
persons who told racist jokes, made racially disparaging remarks,
and/or referred to blacks in offensive terms.
Plaintiffs also
pointed to other incidents of disparate treatment they experienced
while employed at Precinct 3.
In addition to that testimony and
Plaintiffs’ allegations of disparate treatment with regard to their
terminations, they provide other evidence of disparate treatment
suggesting racial pretext.
a.
Plaintiff Lindsey
Plaintiff Lindsey identified Defendant Harrison and Lacy as
non-black officers who were hired as lieutenants.197
According to
Plaintiff Lindsey, their training and experience was no different
than his.198
Plaintiff Lindsey also stated that Rabalais was
promoted through the ranks from sergeant to lieutenant to captain
to chief while Plaintiff Lindsey was never promoted higher than
lieutenant.199 In addition to himself, Plaintiff Lindsey identified
three other black officers who were not given pay raises upon
promotion in rank.200
197
See Doc. 42-1, Ex. A to Defs.’ Mot. for Summ. J., Pl. Lindsey’s Dep.
198
See id.
199
See id. p. 46.
p. 45.
200
See id. p. 66.
Plaintiff Lindsey also identified two non-black
officers who were not give pay raises upon promotion in rank. See id. p. 67.
Regarding the practice occurring across race lines, Plaintiff Lindsey said:
I think it’s a selective process. I think it’s a — because there is
no promotion procedure, there is no promotion process. So I think
46
Plaintiff Lindsey identified Jose Zamudio and William McMorrow
as non-black officers who were accused of double dipping on pay
from Precinct 3 and second jobs.201
They were not disciplined but
were allowed to repay their second employer for the time they were
overpaid.202 Plaintiff Lindsey also testified that, in 2012, Moore,
Garland, Dobbins, Rabalais, and other non-black officers worked the
polls during the primary and general elections as extra work during
hours that they reported on their timesheets at Precinct 3.203
Plaintiff Lindsey identified Rabalais as having worked a seasonal
second
job
for
a
fireworks
business
while
on
duty
at
the
Precinct.204
Plaintiff Lindsey described a pattern of pulling a black
officer from assignments that involved white citizens who were
friends of Defendant Jones or David Franklin (“Franklin”).205
If a
white officer was not available for the assignment, “the black
deputy had to follow certain instructions to make sure the matter
to promote anybody, especially blacks, and giving them the
responsibility and not paying them is very demeaning. Now, I don’t
know what the white officers’ arrangements were and don’t care. But
me personally, to promote me and use me and then fire me for being
a supervisor and not pay me for being one, that’s very
disheartening.
Id. pp. 67-68.
201
See id. p. 35.
202
See id.
203
See id. pp. 59-61.
204
See id. pp. 61-62.
205
See id. p. 47.
47
was resolved amicably and in favor of the Caucasian citizen.”206
Plaintiff Lindsey said the opposite was also true; a black deputy
was sent in the place of a white officer when the incident involved
a black citizen.207
This testimony is sufficient to create a fact issue on whether
Defendant Harris County’s stated reason for terminating Plaintiff
Lindsey was a pretext for discrimination based on race.
b.
Plaintiff Wilson
Plaintiff Wilson identified Dobbins, McCaffrey, Garland, and
Taylor as similarly situated individuals who received promotions
while Plaintiff Wilson remained at the rank of deputy for his
entire
tenure.208
Plaintiff
Wilson
identified
the
same
four
officers as individuals who were given special consideration in
assignments to accommodate their extra jobs.209
Plaintiff Wilson
also stated that Garland and Mike Parsons (“Parsons”) were never
told
to
quit
working
their
extra
jobs.210
Plaintiff
Wilson
testified that white deputies routinely left their Precinct 3
duties to work extra jobs, but Plaintiff Wilson received a written
206
Id.
207
See id. p. 48.
208
See Doc. 42-10, Ex. J to Defs.’ Mot. for Summ. J., Pl. Wilson’s Dep.
pp. 22-24.
209
See id. pp. 22-25.
210
See id. p. 101.
48
warning for doing so.211
Plaintiff Wilson also identified Parsons
as an officer who was accused of double dipping, was investigated,
and was found to be in violation of the rules but was reassigned
rather than terminated.212
Plaintiff Wilson identified Dobbins, McCaffrey, Garland, and
Taylor as individuals who were disciplined more leniently than
Plaintiff Wilson.213
For example, a woman called the police to
protect her from Plaintiff Wilson, and he was required to write a
statement for Precinct 3.214
Plaintiff Wilson said that white
employees did not have to write statements when they “did things
worse[;] they just [got] questioned about it and they covered up
for them. . . . Always.”215
He also testified that Franklin intimidated Plaintiff Wilson
when giving him a written notice for violating the precinct rules
by working apartment security in exchange for a rent-free apartment
and for improper conduct by using the apartment to meet women.216
Plaintiff Wilson said that, at that time, McCaffrey “had an
apartment” and that Precinct 3 command staff knew about it but did
211
See id. pp. 46-47.
212
See id. pp. 96-97.
213
See id. pp. 22-24.
214
See id. pp. 28-29.
215
Id. p. 29.
216
See id. pp. 41-42.
49
not take any disciplinary action against McCaffrey.217
Plaintiff Wilson stated that it was “standard practice for
everybody” to go home during a shift, but he was disciplined when
he was not feeling well and went home to take medication.218
He
specifically identified Garland as a non-black officer who, while
on duty, went home to feed and train his horses and instructed
another officer to take any calls while he was gone.219
Plaintiff Wilson stated that Wooten yelled at Plaintiff Wilson
after he was involved in a road rage incident.220
had two issues with Wooten’s rebuke:
Plaintiff Wilson
(1) “I don’t think Chief
Wooten would have said nothing to a white deputy;” (2) Wooten told
Plaintiff Wilson, “[S]he’s an older white woman.
big black guy with all these muscles.
Here you are the
She’s saying you look like
some gorilla.”221
Plaintiff Wilson identified Joe Flanagan, McCaffrey, and Tommy
Kelly as officers who were arrested, stopped for driving while
intoxicated, and caught speeding in the parking lot in a county
car, respectively, and who were not terminated.222 Plaintiff Wilson
217
See id. p. 43.
218
Id. p. 76.
219
See id. p. 88.
220
See id. pp. 77-82.
221
Id. pp. 82-83.
222
See id. pp. 87-88.
50
also identified Lacy as someone who was accused of “stealing
training hours” and was allowed to resign without a designation of
dishonorable termination.223
Plaintiff Wilson identified Dobbins,
McCaffrey, Garland, and Taylor as individuals who received more
favorable work assignments than Plaintiff Wilson.224
This testimony is sufficient to create a fact issue on whether
Defendant Harris County’s stated reason for terminating Plaintiff
Wilson was a pretext for discrimination based on race.
C.
Retaliation
To establish a prima facie case of retaliation, a plaintiff
must prove: (1) that he participated in a protected activity; (2)
that he suffered an adverse action; and (3) that there was a causal
connection between the protected activity and the adverse action.
Buckhanan
v.
Shinseki,
665
F.
App’x
343,
346-47
(5th
Cir.
2016)(unpublished); Harvill v. Westward Commc’ns, L.L.C., 433 F.3d
428, 439 (5th Cir. 2005).
Protected activity includes complaining
to supervisors about acts of unlawful discrimination.
See 42
U.S.C. § 2000e-3(a).
1.
Plaintiff Lindsey
Plaintiff Lindsey testified that he complained to Moore in
2009 or 2010 about an officer who made “disparaging racial remarks
223
Id. p. 97.
224
See id. pp. 22-25.
51
about minorities and females.”225
Plaintiff Lindsey said that he
also complained to Defendant Harrison in 2012 about being asked to
attend
a
investigatory
meeting
regarding
a
complaint
against
Plaintiff Wilson on the basis that Plaintiff Lindsey was a black
supervisor.226
Plaintiff Lindsey told Defendant Harrison that he
was not Plaintiff Wilson’s supervisor and “felt used as a black
person, supervisor, having to sit in on this complaint just because
these white folks had filed a complaint on [Plaintiff Wilson].”227
In May 2013, when Defendant Harrison notified Plaintiff Lindsey
that he would need to resign from his HHA employment, Plaintiff
Lindsey
told
Defendant
Harrison
“that
this
whole
effort
and
everything [Plaintiff Lindsey] was going through . . . was racially
motivated.”228
The only one of these three complaints that was made to a
supervisor was the 2009 or 2010 complaint, which was too far
removed from Plaintiff Lindsey’s termination to be considered
causally connected to his 2013 termination.
The first complaint
made to Defendant Harrison was during the investigation of a
complaint against Plaintiff Wilson and was also too far removed
from Plaintiff Lindsey’s termination to be causally connected. The
225
Doc. 42-1, Ex. A to Defs.’ Mot. for Summ. J., Pl. Lindsey’s Dep. p.
226
See id. p. 52.
227
Id. p. 53.
228
Id. p. 91; see also id. p. 85.
39.
52
second complaint to Defendant Harrison was also made to him in his
role as IAD investigator regarding the Utley complaint against
Plaintiff Lindsey.
Plaintiff Lindsey has failed to establish that
Defendant Jones had knowledge of Plaintiff Lindsey’s complaint of
race discrimination, much less that the complaint was causally
connected to his decision to terminate Plaintiff.
Plaintiff Lindsey fails to raise a fact issue on retaliation.
2.
Plaintiff Wilson
Plaintiff Wilson stated in his declaration that he complained
to Moore that he was being treated less favorably than non-black
officers when he was told to resign his HHA employment.229 Although
Moore may have been a supervisor, Plaintiff Wilson makes no effort
to connect this complaint or discrimination to Defendant Jones’s
decision
to
terminate
Plaintiff
Wilson’s
employment
upon
the
intervening issuance of an indictment against Plaintiff Wilson.
Plaintiff Wilson fails to raise a fact issue on retaliation.
C.
FLSA
The FLSA generally requires employers to compensate employees
at a rate of not less than one-and-one-half times the regular
hourly rate for the hours worked in excess of forty per week.
See
29 U.S.C. § 207(a)(1); Coffin v. Blessey Marine Servs., Inc., 771
F.3d 276, 279 (5th Cir. 2014).
An action for unpaid overtime
229
See Doc. 53-1, Ex. A to Pls.’ Resp. in Opp. to Defs.’ Mot. for Summ.
J., Pl. Wilson’s Decl. ¶ 16.
53
compensation
requires
proof
of:
(1)
“an
employer-employee
relationship during the unpaid overtime periods claimed;” (2) FLSA
coverage
of
the
plaintiff’s
activities;
(3)
the
employer’s
violation of the FLSA’s overtime wage requirements; and (4) the
amount of overtime compensation owed.
Johnson v. Heckmann Water
Res. (CVR), Inc., 758 F.3d 627, 630 (5th Cir. 2014).
An FLSA
plaintiff bears the burden of proof on all elements of his claim.
Samson v. Apollo Res., Inc., 242 F.3d 629, 636 (5th Cir. 2001).
“An employee bringing an action pursuant to the FLSA, based on
unpaid overtime compensation, must first demonstrate that [he] has
performed work for which [he] alleges [he] was not compensated.”
Ihegword v. Harris Cty. Hosp. Dist., 555 F. App’x 372, 374 (5th Cir.
2014)(unpublished)(quoting Harvill, 433 F.3d at 441).
may
rely
on
the
employer’s
records
if
they
are
A plaintiff
“proper
and
accurate” or, if the records are “inaccurate or inadequate,” may
produce “sufficient evidence to show the amount and extent of that
work as a matter of just and reasonable inference.”
Rosales v.
Lore, 149 F. App’x 245, 246 (5th Cir. 2005)(unpublished)(quoting
Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687 (1946)); see
also Ihegword, 555 F. App’x at 374.
If the plaintiff carries his burden, the burden shifts to the
employer to produce either “evidence of the precise amount of work
performed” or evidence that counters the reasonableness of drawing
an inference in favor of the plaintiff.
54
Ihegword, 555 F. App’x at
374 (quoting Harvill, 433 F.3d at 441); Rosales, 149 F. App’x at
246 (quoting Mt. Clemens Pottery Co., 328 U.S. at 687-88).
The
employer’s failure to meet the shifted burden results in an award
of damages to the plaintiff, even if the amount of the award is
only approximate.
Ihegword, 555 F. App’x at 374 (quoting Harvill,
433 F.3d at 441).
As the first two elements of the FLSA claim are not at issue,
Plaintiffs must provide evidence of Defendant Harris County’s
failure
evidence
to
of
follow
amount
the
of
FLSA’s
overtime
overtime
owed.
wage
On
requirements
the
first
and
issue,
Plaintiffs testified that they were informed to record no more than
eight hours per day and forty hours per week.
When they exceeded
forty hours in a week, they testified, they were told to record
their regularly scheduled work hours and to take comp time the
following day.
However, according to their testimony, they were
often unable to take comp time in the same week it accrued or were
unable to take it at all.
At his deposition, Plaintiff Wilson
opined that the Precinct 3 timesheets were not dependable because
of the policy of completing them according to the hours scheduled
to work rather than the hours actually worked.230
Plaintiffs’ testimony is sufficient to raise a fact question
on Defendant Harris County’s compliance with the FLSA and on the
230
See Doc. 42-10, Ex. J to Defs.’ Mot. for Summ. J., Pl. Wilson’s Dep.
pp. 129, 132, 140.
55
inaccuracy of the time records.
Plaintiffs also testified about
the type of assignments that led to the accumulation of overtime
hours, such as calls late in the shift, supervisory duties, and
community events.
Defendants do not produce evidence of the
precise amount of work performed by Plaintiffs, relying instead on
the timesheets and their contention that no supervisor knew of the
alleged
overtime
violations.
Plaintiffs’
testimony
on
the
widespread policy is more than sufficient to carry this case to
trial.
IV.
Conclusion
Based on the foregoing, the court GRANTS IN PART AND DENIES IN
PART Defendants’ motion.
The remaining claims are Plaintiffs’
claims against Defendant Harris County for wrongful termination and
FLSA overtime wage violations, as well as Plaintiff Lindsey’s claim
against Defendant Harris County for discriminatory compensation.
SIGNED in Houston, Texas, this 29th
day of March, 2017.
______________________________
U.S. MAGISTRATE JUDGE
56
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