Ford v. Texas Department of Criminal Justice

Filing 86

OPINION granting 59 MOTION for Summary Judgment (Signed by Magistrate Judge Stephen Wm Smith) Parties notified.(jmarchand, 4)

United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
T HOMAS F ORD,
Plaintiff,
v.
T EXAS D EPARTMENT OF
C RIMINAL J USTICE,
Defendant.

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January 06, 2017
David J. Bradley, Clerk

C IVIL A CTION N O. 4:15-CV-00664

OPINION ON SUMMARY JUDGMENT
Plaintiff Thomas Ford brought this Title VII suit against his employer, the Texas
Department of Criminal Justice, to challenge a demotion and other disciplinary actions as
discrimination based on race and retaliation for protected activity. Before the Court is
defendant TDCJ’s for summary judgment (Dkt. 59), fully briefed and orally argued at a
hearing on September 12, 2016. The motion will be granted.
Background 1
Ford began working for TDCJ as a correctional officer in June 2006. By August
2010, Ford had been promoted to sergeant and was assigned to the Huntsville Unit. On
June 1, 2013, Ford was promoted to lieutenant by Senior Warden Pamela Baggett, and
assigned to the Holliday Unit.
During the course of the next year, Ford was given three formal reprimands by
Warden Baggett for violations of TDCJ policy. The first reprimand was issued January 6,
2014, for unexcused absenteeism, a level 3 offense.2 Dkt. 59-2, at 43. According to the
offense report, Ford reported for duty four hours late on 12/20/13 because he was

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The following facts are either undisputed or viewed in the light most favorable to the plaintiff.
TDCJ follows a progressive disciplinary scheme referred to as “PD 22” and described in the General
Rules of Conduct and Disciplinary Guidelines for Employees. Employee conduct rules are categorized by
levels, with Level 1 as most serious and Level 4 as least serious. Dkt. 59 at 2 n.8.

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refereeing a game. Ford signed the offense report below his handwritten admission: “This
was my fault. I failed to notify the Captain about my game to get approval.” Dkt. 59-2, at
48. Ford was placed on four months disciplinary probation, ending 5/5/14. Id. at 43.
The second discipline was issued March 18, 2014 for allowing a subordinate to
conduct the unit formal count, a violation of policy and Level 2 offense. Dkt. 59-2, at 30.
Again, Ford signed the offense report, stating that “I did allow Sgt. Ridenbaugh to
conduct the unit count.” Id. at 37. Ford was suspended without pay for four days, and
placed on disciplinary probation for 10 additional months, ending 3/5/15.
The third discipline was issued on April 17, 2014 for failure to follow proper
reporting procedures for an inmate-on-inmate assault that resulted in serious injury, a
violation of policy and Level 2 offense. Dkt. 59-2, at 3. Ford signed the report,
acknowledging that he had asked another officer to send the EAC report for him, and
attempting to justify his actions. Warden Baggett signed the reprimand form
recommending Ford’s dismissal, based on TDCJ’s progressive disciplinary policy for
three violations within a two-year period. Dkt. 59, at 23.
Ford challenged this decision, requesting mediation through TDCJ Region I
Director Richard Alford. As a result of the mediation, Ford was permitted to return to
work on May 13, 2014 under the following conditions: he would be transferred to the
Wynne Unit, demoted to Correctional Officer V, placed on 6 months’ probation, and
given counseling on TDCJ policies and procedures. Dkt. 59 at 8. Ford remains employed
in that position.

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On November 19, 2014, Ford filed this lawsuit against TDCJ, claiming that the
disciplinary actions resulting in his demotion were the product of race and sex
discrimination by Warden Baggett. He further claims that he has been subjected to
unlawful retaliation at the Wynne Unit after the filing of his suit. Specifically, he points to
three “bogus” disciplinary incidents beginning in September 2015. In the first, Ford was
required to provide a doctor’s note in order to return to work after being off several days;
Ford complained that his absences had been approved, and so a doctor’s note should not
have been required. The other two incidents occurred in 2016, when Ford was written up
for leaving his duty station without approval and refusing a direct order to conduct a
recount. Neither disciplinary action was pursued after Ford protested. Dkt.66, at 24-25.
Standard of Review
Summary judgment is appropriate if no genuine issues of material fact exist, and
the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). The
party moving for summary judgment has the initial burden to prove there are no genuine
issues of material fact for trial. Provident Life & Accident Ins. Co. v. Goel, 274 F.3d 984,
991 (5th Cir. 2001). Dispute about a material fact is genuine if the evidence could lead a
reasonable jury to find for the nonmoving party. In re Segestrom, 247 F.3d 218, 223 (5th
Cir. 2001). “An issue is material if its resolution could affect the outcome of the action.”
Terrebonne Parish Sch. Bd. v. Columbia Gulf Transmission Co., 290 F.3d 303, 310 (5th
Cir. 2002).
In Title VII discrimination cases, a plaintiff may defeat a summary judgment
motion by any admissible evidence from which a fact-finder might reasonably infer
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discriminatory intent behind the employer’s action. Conlay v. Baylor College of
Medicine, 688 F.Supp.2d 586, 593 (S.D. Tex. 2010). The Supreme Court in McDonnell
Douglas cautioned against enshrining one fixed set of elements for every Title VII case:
“The facts necessarily will vary in Title VII cases, and the specification above of the
prima facie proof required from [the plaintiff] is not necessarily applicable in every
respect to differing factual situations.” 411 U.S. 792, 802 n.13 (1973). See also Byrd v.
Roadway Express, Inc., 687 F.2d 85, 86 (5th Cir. 1982) (“[N]o single formulation of the
prima facie evidence test may fairly be expected to capture the many guises in which
discrimination may appear. The focus of the inquiry may not be obscured by the
blindered recitation of a litany.”) (citations omitted). In Jatoi v. Hurst-Euless-Bedford
Hosp. Auth., the Fifth Circuit explained the court’s task:
If a plaintiff cannot establish some or all of the McDonnell Douglas steps,
the district court must examine all the evidence that has been adduced for
other indicia of racial discrimination . . . and determine whether it is more
likely than not that the employer’s actions were based on illegal discriminatory
criteria.
807 F.2d 1214, 1219 (5th Cir. 1987).
To establish a claim of unlawful retaliation under Title VII, the plaintiff must
prove (1) protected activity, (2) adverse action by the employer, and (3) causal connection
between the two. 42 U.S.C. § 2000e-3(a); Pierce v. Texas Dept. of Criminal Justice, 37
F.3d 1146, 1151 (5th Cir. 1994). The Supreme Court has held that the employer’s actions
must be “materially” adverse, which in this context means “harmful to the point that they
could well dissuade a reasonable worker from making or supporting a charge of

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discrimination.” Burlington Northern and Santa Fe Ry. Co. v. White, 548 U.S. 53, 56
(2006).
Analysis
A. Discrimination
Plaintiff asserts that he was the victim of a racially discriminatory scheme by
Warden Pamela Baggett and her chain of command to terminate African American
employees by “manufacturing a rapid series of disciplinary actions based upon false or
contrived allegations of policy violations.” Dkt. 66, at 1. Ford has produced no direct
evidence of racial bias by Warden Baggett, such as racial slurs or comments. Instead,
Ford relies on indirect modes of proof routinely found in Title VII cases --- dissimilar
treatment of similarly situated employees, statistics, and pretext. Each category will be
addressed in turn.
Dissimilar treatment. Preferential treatment of similarly situated employees
outside the plaintiff’s protected class is an accepted type of Title VII proof. Nieto v. L &
H Packing Co., 108 F.3d 621, 623 (5th Cir. 1997). This usually requires a showing that
“those employees’ circumstances, including their misconduct, must have been ‘nearly
identical.’” Perez v. Texas Dep’t of Crim. Justice, 395 F.3d 206, 213 (5th Cir. 2004)
(quoting Little v. Republic Ref. Co., 924 F.2d 93, 97 (5 th Cir. 1991)).

In his deposition,

Ford identified four non-Black lieutenants as comparators who were not discharged under
similar circumstances. But none of these are proper comparators. Three of them
(Ragazinsky, Graham, and Hatthorn) had no prior disciplines during the time they were
lieutenants at the Holliday unit. Dkt. 59, at 14. The fourth (Michele Uribe) was similarly
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situated to Ford, in that she did have three disciplinary actions within two years.
However, she received exactly the same punishment as Ford --- initially recommended
for termination, but demoted to correctional officer, placed on probation, and transferred
to a different unit following mediation. Id. No reasonable inference of discrimination can
be drawn from such circumstances.
Statistics. After the summary judgment was filed, plaintiff successfully moved to
compel discovery of evidence attempting to show the existence of a discriminatory
scheme by Warden Baggett to reduce or eliminate the number of African American
officers under her command. Dkt. 68. Ford submitted this evidence in a supplemental
filing. Dkt. 73-1.The evidence consists of answers to two interrogatories: the first sought
to identify sergeants or lieutenants who had received multiple disciplinary actions within
the same month; the second sought a list of all African American officers who resigned,
transferred, or were terminated under Warden Baggett. The relevant time period was from
January 1, 2013 through March 31, 2016.
Neither discovery response creates a reasonable inference of a discriminatory
pattern or practice by Warden Baggett. The first interrogatory answer identifies six
individuals who received more than one discipline within a one month period – two
Whites and four Blacks (including Ford). The second interrogatory answer lists twelve
African American officers, of whom six were transferred (including Ford), four retired,
and two resigned. None were terminated, and no evidence was produced to indicate that
the retirements or resignations were involuntary. Even if they had been, these unadorned
numbers are far too small a sample to draw any meaningful inference of a discriminatory
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pattern or practice. See Adams v. Reed, 567 F.2d 1283, 1286 (5 th Cir. 1978) (numbers
“drawn from a pool too small to produce highly valuable evidence” held insufficient for
prima facie case of sex discrimination in hiring); Mems v. City of St. Paul, 224 F.3d 735,
740-41 (8th Cir. 2000) (sample size of three to seven was too small to be significant in
race discrimination case).
Pretext. TDCJ’s stated reason Ford’s demotion was its progressive disciplinary
policy authorizing more severe punishment, up to and including termination, for three
disciplinary violations within a two year period. Dkt. 69, at 2. Ford does not question the
existence of the policy, but does cite mitigating circumstances which he contends should
have caused management not to punish any of the three infractions. For example,
regarding the first discipline for unexcused absence, Ford admits that he reported to work
four hours late, but now claims that he received permission in a phone call with Capt.
Ragazinsky 15 minutes before the shift began. Dkt.66-1, at 5. This directly contradicts
Ford’s written admission the day after the offense: “This was my fault. I failed to notify
the Captain about my game to get approval.” Dkt. 59-2, at 48.
Similarly, regarding the second discipline, Ford admits allowing a sergeant to
conduct the unit formal count, which TDCJ considered a violation of policy. Dkt. 66-7.
Ford contends that the written policy allowed sergeants to “assist” the lieutenant or
captain with the count, and presented evidence that this was a common practice. Dkt. 661, at 7; Dkt. 66-2, at 3. In this case, however, it appears that the sergeant did more than
merely “assist”; he conducted the count himself from start to finish. Dkt. 59-2, at 37. It is
certainly within management prerogative to interpret and apply its own policies. Ford also
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argues that during the disciplinary Warden Baggett told him that the real reason he was
being disciplined was “because she was tired of receiving complaints against me from my
staff for sexual harassment, racism, favoritism, and discrimination.” Dkt. 66-1, at 7.3 Even
if one accepts this as some evidence of “pretext” on Warden Baggett’s part, it is not a
pretext for racial bias, and so does nothing to advance Ford’s discrimination claim.
As for the third discipline, Ford again concedes the underlying factual basis of the
charge --- an inmate assault resulting in serious injury occurred near the end of his shift,
and Ford neither initiated an Offender Protection Investigation (OPI) nor reported the
injury to the Emergency Action Center. Dkt.66, at 16. Ford argues that he had begun the
EAC report, but because he did not have full medical information from the nurse when
his shift ended he asked the relieving lieutenant to finish it for him. Dkt. 66-1, at 8. At
best, this is an argument for mitigation, rather than pretext. Ford’s contention is that under
all the circumstances discipline was unfair, not that it was racially discriminatory. But
employment discrimination laws are “not intended to be a vehicle for judicial second
guessing of business decisions, nor . . . to transform the courts into personnel managers.”
EEOC v. Louisiana Office of Community Servs., 47 F.3d 1438, 1448 (5th Cir. 1995),
quoting Bienkowski v. American Airlines, Inc., 851 F.2d 1503, 1507-08 (5th Cir. 1988).
For these reasons, there is no basis for a reasonable fact-finder to infer that the
stated reasons for TDCJ’s actions were mere pretexts for racial discrimination.

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Both sides devote much attention to earlier charges of sexual harassment against Ford by several female
officers, which were investigated but resulted in no formal discipline for Ford. In the Court’s view, these
charges are irrelevant, because they have nothing to do with race and were not the stated reason for any of
the actions taken against Ford by TDCJ.
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Other evidence. Ford presents statements from co-workers alleging that they were
victims of, or witnesses to, other incidents of race discrimination at TDCJ. The Court has
considered this evidence carefully, and concludes that it is too remote and insubstantial to
warrant any inference that either Ford’s demotion or the disciplinary events leading to it
were the product of race discrimination.
B.

Retaliation
Ford’s concedes that he did not engage in Title VII protected activity prior to the

demotion and transfer to the Wynne Unit. Dkt. 66, at 23. He did subsequently engage in
protected activity by filing an EEOC charge on August 14, 2014, and this lawsuit on
November 19, 2014. Dkt. 69-3; Dkt. 1, at 1. The alleged retaliation took the form of three
incidents occurring more than a year after the EEOC charge, none of which resulted in
formal disciplinary action or letters of instruction to Ford. Dkt. 66, at 23-25.
The first took place in September 2015, when Ford was off for several days and
was told by his supervisors that a doctor’s note would be required in order to return to
work. Dkt. 66-1, at 10. Ford contended that a doctor’s note was unnecessary because his
leave had been approved, but his protest was unsuccessful. It is not clear from the record
whether Ford lost any pay as a result of this incident. Assuming he did, there is no basis
in the record to infer any causal connection between Ford’s protected activity and this
incident. The temporal gap alone is simply too wide to support such an inference.4 See

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Ford points out that the Wynne Unit chain of command were notified of Ford’s protected activity by a
July 2015 email from Larry Jones. Dkt. 66, at 23. But nothing in the record suggests that this was the first
time those TDCJ officials had learned about Ford’s 2014 EEOC charge and lawsuit.
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Strong v. University Health Care System, L.L.C., 482 F.3d 802, 808 (5 th Cir. 2007);
Shirley v. Chrysler First, Inc., 970 F.2d 39, 44 (5 th Cir. 1992).
The remaining two incidents occurred in 2016, so they are even more remote in
time from the protected activity. Like the first incident, nothing in the record suggests any
causal link between these incidents and the filing of this lawsuit. Moreover, neither of the
2016 incidents resulted in any discipline for Ford, nor did they result in loss of pay or
change of status or demeaning job duties. Cf. Marroquin v. City of Pasadena, 524
F.Supp.2d 857, 864-65 (S. D. Tex. 2007). As a result, the Court concludes that neither of
these incidents are serious enough to dissuade a reasonable employee from making or
supporting a charge of discrimination. Therefore, regarding these two incidents, Ford has
also failed to demonstrate a genuine issue of material fact on the second element of his
retaliation claim --- that he has suffered a materially adverse action under the Burlington
Northern standard. 548 U.S. at 57.
Conclusion
Ford has not presented sufficient evidence to avoid summary judgment on both his
Title VII discrimination and retaliation claims. The Texas Department of Criminal
Justice’s motion for summary judgment (Dkt. 59) is granted.
Signed at Houston, Texas on January 5, 2017.

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