Loveless v. Texas Department of Assitive and Rehabilitative Services et al

Filing 23

REPORT AND RECOMMENDATIONS re 11 Motion for Summary Judgment, filed by Texas Department of Assistive and Rehabilitative Services. Signed by Judge Andrew W. Austin. (jk)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
GRACE LOVELESS,
Plaintiff,
V.
TEXAS DEPARTMENT OF ASSISTIVE
AND REHABILITATIVE SERVICES,
Defendant.

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A-11-CV-740-LY

REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
TO:

THE HONORABLE LEE YEAKEL
UNITED STATES DISTRICT JUDGE
Before the Court are Defendant’s Motion for Summary Judgment (Dkt. No. 11), Defendant’s

Supplement to its Motion for Summary Judgment (Dkt. No. 12), Plaintiff’s Response in Opposition
(Dkt. No. 16), Plaintiff’s Supplement to its Response (Dkt. No. 17), and Defendant’s Reply (Dkt.
No. 20). The Court also considered Defendant’s Objections to Plaintiff’s Declarations in Plaintiff’s
Response (Dkt. No. 19) in rendering this Report and Recommendation. The District Court referred
the above-motion to the undersigned Magistrate Judge for a report and recommendation pursuant
to 28 U.S.C. §636(b) and Rule 1(c) of Appendix C of the Local Rules of the United States District
Court for the Western District of Texas, Local Rules for the Assignment of Duties to United States
Magistrate Judges.
I. BACKGROUND
Plaintiff Grace Loveless (“Loveless”), an African-American woman currently employed by
Defendant Texas Department of Assistive and Rehabilitative Services (“TDARS”), brings the instant
suit under Title VII of the Civil Rights Act of 1964, alleging that TDARS “willfully discriminated

against [her] on the basis of her race and in retaliation for filing a racial discrimination complaint.”
Dkt. No. 5, ¶ 8. Loveless began working for TDARS in 1999 and is currently a Program Consultant.
Dkt. No. 11 at 3. In that capacity, Loveless is responsible for “identifying deficiencies and
improving the performance of disability examiners.” Dkt. No. 16 at 1.
In this case, Loveless contends that due to her race she was passed over several times in 2010
for a promotion to the position of Operations Unit Manager (“OUM”). Dkt. No. 5. In particular,
Loveless asserts that TDARS discriminated against her by not promoting her to two open OUM
positions in April 2010, one OUM position in May/June 2010, and one OUM position in November
2010. Id. ¶ 8. TDARS hired one man and one woman, both Caucasian, for the open OUM positions
in April 2010. Dkt. No. 17, Exh. B, ¶ 9 [hereinafter Loveless Declaration]. TDARS hired a
Hispanic woman for the OUM position in May/June 2010 and an African-American man for the
OUM position in November 2010. Dkt. No. 11 at 4.
After she was not selected for the OUM positions in April, Loveless filed an internal
administrative complaint with the Texas Health and Human Services Commission (“HHS”) on May
5, 2010, seeking to learn more about why she was not selected for the two OUM positions. Dkt. No.
11, Attachment 3. In particular, Loveless sought an explanation as to how her years of experience,
knowledge of policy, and education factored into the decision-making process. Id. On May 19,
2010, the Receiving Supervisor, Ruben Guerrero, responded to Loveless’s complaint, noting that he
(1) had met with her on May 14, 2010; (2) discussed the selection process for the two OUM
positions; and (3) explained that she had not demonstrated that she was one of the two applicants
most qualified for the job when considering her application screening score and her interview score.
Id. Loveless appealed this decision but upon further review, HHS issued its final decision on June
15, 2010, finding that the most qualified applicants were selected for the positions. Id. In the
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meantime, Loveless had filed another internal administrative complaint, asserting that Guerrero had
reached over the table and pointed his finger in her face during their meeting to discuss Loveless’s
first administrative complaint. Dkt. No. 11, Attachment 4. Loveless stated that she felt threatened
and intimidated by Guerrero’s actions.1 Id. As a result, Loveless also claims that TDARS’s failure
to promote her to the OUM positions in May/June 2010 and November 2010 was in retaliation for
the racial discrimination complaint she had filed against TDARS. Dkt. No. 5, ¶ 8. However, in
neither of these administrative complaints did Loveless assert claims of racial discrimination against
TDARS for failure to promote her to the OUM position. It was not until September 23, 2010, that
Loveless submitted a charge of discrimination with the Texas Workforce Commission and the
EEOC, alleging that TDARS discriminated against her based on her race when it did not select her
for the OUM position in April 2010. Dkt. No. 11, Attachment 6.
II. STANDARD OF REVIEW
Summary judgment shall be rendered when the pleadings, the discovery and disclosure
materials on file, and any affidavits show that there is no genuine dispute as to any material fact and
that 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, 323–25 (1986); Washburn v. Harvey, 504 F.3d 505, 508 (5th Cir. 2007).
A dispute regarding a material fact is “genuine” if the evidence is such that a reasonable jury could
return a verdict in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). When ruling on a motion for summary judgment, the court is required to view all inferences
drawn from the factual record in the light most favorable to the nonmoving party. Matsushita Elec.

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From the record, it is unclear what decision was ultimately reached on Loveless’s second
administrative complaint.
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Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986); Washburn, 504 F.3d at 508. Further, a court
“may not make credibility determinations or weigh the evidence” in ruling on a motion for summary
judgment. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000); Anderson, 477
U.S. at 254–55.
Once the moving party has made an initial showing that there is no evidence to support the
nonmoving party’s case, the party opposing the motion must come forward with competent summary
judgment evidence of the existence of a genuine fact issue. Matsushita, 475 U.S. at 586. Mere
conclusory allegations are not competent summary judgment evidence, and thus are insufficient to
defeat a motion for summary judgment. Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 343
(5th Cir. 2007). Unsubstantiated assertions, improbable inferences, and unsupported speculation are
not competent summary judgment evidence. Id. The party opposing summary judgment is required
to identify specific evidence in the record and to articulate the precise manner in which that evidence
supports his claim. Adams v. Travelers Indem. Co. of Conn., 465 F.3d 156, 164 (5th Cir. 2006).
III. ANALYSIS
In its Motion for Summary Judgment, TDARS contends that it is entitled to judgment as a
matter of law because Loveless (1) has failed to exhaust her administrative remedies with regard to
her claims of racial discrimination and retaliation in relation to TDARS’s failure to promote her in
May and November 2010; (2) cannot establish that TDARS failed to promote her due to her race;
(3) cannot establish that TDARS failed to promote her in May/June or November 2010 due to her
race; and (4) cannot establish that TDARS’s proffered reason for not promoting her was a pretext
for discrimination or retaliation. Dkt. No. 11 at 2. TDARS submits that Loveless was not hired for
the OUM positions in 2010 because she was not the most qualified candidate for the job. Dkt. No.
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11 at 9. Loveless argues that she has presented sufficient evidence to allow a reasonable fact-finder
to conclude that TDARS discriminated against her based on her race in making its hiring decision
for the two OUM positions in April 2010. Dkt. No. 16. More specifically, Loveless points to the
fact that the position was open to non-TDARS employees, which contradicts the requirements for
the OUM position. Id. at 3. Loveless also highlights the different answers provided by the two
successful candidates as well as Loveless in response to Interview Question 3, which covered the
knowledge each candidate had about the Social Security Administration’s disability program, as
evidence that TDARS discriminated against her. Id. at 4.
As an initial matter, the Court notes that Loveless presents no argument rebutting TDARS’s
contention that all claims against TDARS based upon its failure to promote Loveless in May/June
2010 and November 2010 should be dismissed. In fact, in her response to TDARS’s Motion for
Summary Judgment, Loveless explicitly states that she “is only pursuing her claims of racial
discrimination for the April 2010 denial of promotions to two Operations Unit Manager (OUM)
positions.” Dkt. No. 16 at 1. Additionally, Loveless has submitted no evidence pertaining to
TDARS’s hiring decisions for the open OUM positions in May/June 2010 or November 2010.
Consequently, the Court finds that there is no genuine issue of material fact with regard to Loveless’s
claims of racial discrimination and retaliation pertaining to TDARS’s hiring decisions in May/June
2010 and November 2010, and RECOMMENDS that the District Judge GRANT TDARS’s Motion
for Summary Judgment on these claims.
Title VII prohibits employers from discriminating based on an individual’s race, color,
religion, sex, or national origin. 42 U.S.C. § 2000e–2(a). Where, as here, a plaintiff only relies on
circumstantial evidence, the Court must apply the familiar analytical framework from the McDonnell

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Douglas case for Title VII claims. Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 345 (5th
Cir. 2007).

Pursuant to that framework, Loveless first must make a prima facie case of

discrimination based on race. Vaughn v. Woodforest Bank, 665 F.3d 632, 636 (5th Cir. 2011);
Rachid v. Jack In The Box, Inc., 376 F.3d 305, 309 (5th Cir. 2004). To establish a prima facie case
for a failure to promote claim, Loveless must show that “[she] (1) is a member of a protected class;
(2) she sought and was qualified for the position; (3) she was rejected for the position; and (4) that
the employer continued to seek applicants with [Loveless’s] qualifications.” Haynes v. Pennzoil Co.,
207 F.3d 296, 300 (5th Cir. 2000). If Loveless sufficiently states a prima facie case, the “burden of
production shifts to [TDARS] to articulate a legitimate, nondiscriminatory reason for its actions.”
Id. TDARS’s burden is satisfied when it produces evidence that “taken as true, would permit the
conclusion that there was a nondiscriminatory reason for the adverse action.” St. Mary’s Honor Ctr.
v. Hicks, 509 U.S. 502, 509 (1993) (emphasis in original). Should TDARS present sufficient
evidence to support a legitimate, nondiscriminatory reason for its actions, the burden shifts back to
Loveless to show “that [TDARS’s] proffered reason is not true, but instead is a pretext for
intentional discrimination.” Price v. Fed. Exp. Corp., 283 F.3d 715, 720 (5th Cir. 2002); see also
Shackelford v. Deloitte & Touche, LLP, 190 F.3d 398, 404 (5th Cir. 1999). Here, Loveless “must
substantiate [her] claim of pretext through evidence demonstrating that discrimination lay at the
heart” of the employer’s decision. Price, 283 F.3d at 720. The only remaining question at this stage
is “whether there is a conflict in substantial evidence to create a jury question regarding
discrimination.” Haynes, 207 F.3d at 300.
In its Motion for Summary Judgment, TDARS argues that even if Loveless has established
a prima facie case of racial discrimination under Title VII, summary judgment should still be granted

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because Loveless has failed to demonstrate that she is clearly better qualified than the candidates
selected for the OUM positions in April 2010. Dkt. No. 11 at 8. More specifically, TDARS
highlights that the candidates selected for the open OUM positions in April 2010 obtained higher
scores than Loveless on the Optional Matrix Tools used by TDARS during the hiring process. Id.
at 9. TDARS notes that Loveless’s own beliefs about her qualifications are not sufficient to defeat
summary judgment in this case. Id. In response, Loveless points to two factors which she believes
demonstrate that TDARS’s proffered reasons for not selecting her are false. In particular, Loveless
contends that TDARS ignored (1) the job requirements for the OUM position, one of which was that
applicants had to be from TDARS’s Disability Determination Services division and (2) the
requirement that candidates be knowledgeable about the Social Security Disability program. Dkt.
No. 16 at 3–5. Based on these two issues, Loveless argues that summary judgment should not be
granted.
After reviewing the parties’ pleadings as well as the evidence submitted, the Court concludes
that Loveless has not demonstrated that a genuine issue of material fact exists about whether
TDARS’s proffered reason for not promoting Loveless was a pretext for discrimination. TDARS
maintains that Loveless was not promoted because other applicants were better qualified for the
OUM positions than Loveless. The summary judgment evidence reveals that TDARS utilized a twostep process to screen applicants for the OUM positions in April 2010. Dkt. No. 12, Appendix 2,
¶ 5. At the initial step, applications were screened using the Optional Matrix Tool. Id. ¶ 4. The
eight applicants with the highest scores on the Optional Matrix Tool, including Loveless, were
selected for interviews and skills testing. Id. ¶ 5; see also Dkt. No. 17, Attachment 8. Based on the
applicants’ interview scores, Loveless ranked sixth out of the eight candidates who were interviewed.

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Dkt. No. 11, Appendix 2, ¶ 7; Dkt. No. 17, Attachment 8. The two candidates with the highest
interview scores were hired. Dkt. No. 11, Appendix 2, ¶¶ 8–9. The interviewer stated that the two
successful candidates evidenced more experience and skills in management than Loveless. Id. ¶ 10.
This evidence establishes that TDARS had a non-discriminatory reason for not promoting
Loveless—i.e., Loveless was not the most qualified candidate and the other candidates performed
better on the interview. At the summary judgment stage, the burden thus shifts back to Loveless to
show that this proffered reason was actually a pretext for discrimination. To satisfy her burden,
Loveless can demonstrate that she was “clearly better qualified” for the OUM position than the
successful candidates. Manning v. Chevron Chem. Co., LLC, 332 F.3d 874, 882 (5th Cir. 2003).
The Fifth Circuit has recognized that “the bar is set high for this kind of evidence because
differences in qualifications are generally not probative evidence of discrimination unless those
disparities are ‘of such weight and significance that no reasonable person, in the exercise of impartial
judgment, could have chosen the candidate selected over the plaintiff for the job in question.’”
Celestine v. Petroleos de Venez. SA, 266 F.3d 343, 357 (5th Cir. 2001) (citing Deines v. Tex. Dep’t
of Protective and Regulatory Servs., 164 F.3d 277, 280–81 (5th Cir. 1999)). The Fifth Circuit has
further cautioned that the judicial system is not well suited to evaluate qualifications for specific
positions and that “unless disparities in curricula vitae are so apparent as virtually to jump off the
page and slap [the court] in the face,” the courts should refrain from substituting their judgment for
those making the hiring decisions. See, e.g., E.E.O.C. v. La. Office of Cmty. Servs., 47 F.3d 1438,
1445 (5th Cir. 1995) (internal citations omitted). Based on the evidence currently before the Court,
Loveless has not met her burden.

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Although Loveless’s summary judgment evidence shows that she may be qualified for the
OUM position, she did not demonstrate that she is “clearly better qualified” than the two successful
candidates. The evidence shows that Loveless began working at TDARS in December 1999 as a
Disability Examiner. Dkt. No. 11, Appendix 1 at 33. Loveless became a Program Consultant in
August 2006. Dkt. No. 11, Appendix 9. This evidence is probative of Loveless’s qualifications, but
it does not show that Loveless was “clearly better qualified” than the two successful applicants nor
does it raise a fact question about whether TDARS’s non-discriminatory reason for promoting her
to the OUM position was merely pretext for racial discrimination. While Loveless emphasizes that
her knowledge of the Social Security Disability program makes her a better qualified candidate, she
neglects several other considerations listed by TDARS. For example, the job listings provided by
Loveless all show that the OUM position also required effective communication, management, and
organization skills as well as the ability to coordinate with other departments, develop budget
requests, and manage expenditures. Dkt. No. 17, Attachments 9, 11, and 15. Loveless has not
presented evidence, nor does she contend, that she was more qualified than the two successful
applicants with regard to these other considerations.
Furthermore, to the extent Loveless complains about the subjective nature of TDARS’s
selection process, she has also failed to show pretext. “The mere fact that an employer uses
subjective criteria is not . . . sufficient evidence of pretext.” Manning, 332 F.3d at 882. Loveless
argues that she provided a superior answer to Interview Question 3 when compared to the two
successful candidates. Dkt. No. 16 at 4–5. This question asked how each applicant would
administer the OUM’s responsibility of making sure that the decisions made by the Disability
Specialists were well-documented, accurate, and timely. See, e.g., Dkt. No. 17 at attachments 1-3.

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Loveless’s assertion that her answer was superior to that of the two selected applicants appears to
be based primarily on her personal opinion and belief. One of the candidates discussed effective
documentation and regular meetings. Dkt. No. 17, Attachment 2. The other candidate talked about
his current job responsibilities. Dkt. No. 17, Attachment 3. This evidence does not demonstrate that
Loveless is “clearly better qualified” than the two candidates selected. Case law states that a court
may not re-evaluate or question the decisions of an employer when the evidence fails to show that
the plaintiff is “clearly better qualified.” See, e.g., La. Office of Cmty. Servs., 47 F.3d at 1445.
Furthermore, as mentioned previously, candidates were not evaluated based on a single criterion and
certainly not on a single answer. TDARS’s interview evaluation contained at least ten questions.
See, e.g., Dkt. No. 17, Attachments 1, 2, and 3. Loveless has not demonstrated that she was “clearly
better qualified” than the two selected applicants.
Loveless also fails to present evidence of pretext for her remaining contention—that TDARS
improperly opened up the OUM position to all applicants instead of restricting the applicants to
current TDARS Disability Determination Services employees. “Failure to follow internal procedures
is generally not enough to create a genuine issue of fact as to discriminatory motives.” Grubb v. Sw.
Airlines, 296 Fed.Appx. 383, 390 (5th Cir. 2008) (per curiam). A violation of internal policies does
not, by itself, preclude summary judgment. Paris v. Sanderson Farms, Inc., No. 13–20239, 2013
WL 5670899 at *4 (5th Cir. Oct. 18, 2013). When considering whether a violation of internal
policies gives rise to evidence of pretext, the Court considers the nature of the internal policy and
the extent of the deviation in the particular case in light of all the other relevant facts. Id. Here,
Loveless argues that TDARS ignored the requirement that the OUM positions available in April
2010 were limited to existing employees in the TDARS Disability Determination Services. Dkt. No.

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16 at 5. Yet the record indicates that the Senior Director for TDARS Disability Determination
Services approved the job posting for the OUM positions in March 2010. Dkt. No. 20, Appendix
15, ¶ 4. The evidence also shows that the decision to open the application to all applicants was due
to the Senior Director’s “desire to hire people with a high level of managerial skills related to the
OUM position.” Id. ¶ 5. In light of all the other relevant facts, this evidence establishes a legitimate,
non-discriminatory reason for permitting applications to be submitted by individuals who were not
employed by the TDARS Disability Determination Services division. Other than Loveless’s own
assertion that this requirement was ignored to discriminate against her based on her race, she points
to no evidence demonstrating a connection between TDARS’s decision to allow any candidate to
apply for the OUM positions in April 2010 and her race. In fact, the evidence indicates that TDARS
has promoted African-Americans from the position of Program Consultants to OUM and that at least
one African-American occupies a Director position, which is senior to the OUM position. Dkt. No.
11, Appendix 1 at 88–90. There is simply no evidence to indicate that TDARS’s decision to allow
all applicants was motivated by Loveless’s race. Therefore, the Court concludes that Loveless has
not carried her burden of showing that TDARS’s proffered reason was pretext for discrimination.
IV. RECOMMENDATION
In accordance with the preceding analysis, the undersigned RECOMMENDS that the
District Court GRANT Defendant Texas Department of Assistive and Rehabilitative Services’s
Motion for Summary Judgment (Dkt. No. 11).
V. WARNINGS
The parties may file objections to this Report and Recommendation. A party filing
objections must specifically identify those findings or recommendations to which objections are

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being made. The District Court need not consider frivolous, conclusive, or general objections. See
Battle v. United States Parole Comm'n, 834 F.2d 419, 421 (5th Cir. 1987).
A party's failure to file written objections to the proposed findings and recommendations
contained in this Report within fourteen (14) days after the party is served with a copy of the Report
shall bar that party from de novo review by the District Court of the proposed findings and
recommendations in the Report and, except upon grounds of plain error, shall bar the party from
appellate review of unobjected-to proposed factual findings and legal conclusions accepted by the
District Court. See 28 U.S.C. § 636(b)(1)(c); Thomas v. Arn, 474 U.S. 140, 150-53 (1985);
Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).
To the extent that a party has not been served by the Clerk with this Report &
Recommendation electronically pursuant to the CM/ECF procedures of this District, the Clerk is
directed to mail such party a copy of this Report and Recommendation by certified mail, return
receipt requested.
SIGNED this 25th day of February, 2014.

________________________________________
ANDREW W. AUSTIN
UNITED STATES MAGISTRATE JUDGE

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