Graham v. Bluebonnet Trails Community Services

Filing 57

MEMORANDUM OPINION AND ORDER. ORDERED that Defendant's Motion for Summary Judgment # 38 is DISMISSED AS MOOT; FURTHER ORDERED that Defendant's Amended Motion for Summary Judgment # 46 is GRANTED; FURTHER ORDERED that Defendant's Motion to Strike Experts # 49 is DISMISSED AS MOOT; FINALLY ORDERED that Defendant's Motion to Strike Exhibits # 51 is DISMISSED AS MOOT.. Signed by Judge Sam Sparks. (td)

FILED
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

APR

CONTINA GRAHAM,

Plaintiff,
Case No. A-12-CA-977-SS

-vs-

BLUEBONNET

TRAILS

COMMUNITY

SERVICES,
Defendant.

ORDER
BE IT REMEMBERED on this day the Court reviewed the file in the above-styled cause, and

specifically Defendant's Motion for Summary Judgment [#3 8]'; Defendant's Amended Motion for
Summary Judgment [#46], Plaintiff's Response [#50], and Defendant's Reply [#54]; Defendant's

Motion to Strike Experts [#49], Plaintiff's Response [#55], and Defendant's Reply [#56]; and

Defendant's Motion to Strike Exhibits [#5 1]. Having reviewed the documents, the governing law,
and the file as a whole, the Court now enters the following opinion and orders.

Background
This is a pro se lawsuit based on alleged racial discrimination. Defendant Bluebonnet Trails

Community Services (Bluebonnet) is a community center which provides mental health and mental
retardation services for an eight county service area in Central Texas. Certain services are provided
to clients by Bluebonnet through service providers under contract with Bluebonnet. Plaintiff Contina

Graham was, from 2005 to September 2008, an employee of Bluebonnet providing services to

1This motion is DISMISSED AS MOOT in light

[#46].

of Defendant's Amended Motion for Summary Judgment

29

persons in need of assistance. In January 2007, Graham formed a business called Sharing the Love
Health Care, Inc. (Sharing the Love), and in August 2008, she applied to become a contractor of
Bluebonnet.

See

Def.'s Am. Mot. Summ. J. [#46-1], Ex. 25 (including both Graham's application

to become a contractor and, attached to this application, Sharing the Love's Certificate of Filing from

the Secretary of State of Texas, dated January 10, 2007, indicating Graham filed a Certificate of

Formation for Sharing the Love).
In September 2008, Graham and Sharing the Love entered into a contract with Bluebonnet

to

provide respite,

supported home

employment/employment assistance services.

living/community
See

Id.,

support,

and

supported

Ex. 27. The original contract was amended

on a couple of occasions, and Sharing the Love's newest contract was to be for the term beginning

September 1, 2011, and ending August 31,2013.

See

id.,

Ex. 26. These contracts bear the signature

of Graham as CEO of Sharing the Love.
Beginning in 2009, Graham was notified ofissues relating to performance under her contract

with Bluebonnet including such issues as Graham's use of Bluebonnet's facility to conduct Sharing
the Love's business.

See

Id.,

Ex. 4. The record also shows a number of other correspondences

between various staffmembers of Bluebonnet and Graham relating to Graham's, Sharing the Love's,
and the Sharing the Love's subcontractors' failure to prepare notes and bills properly or in a timely

manner, along with other violations of contract requirements.

See

Id.,

Exs. 4-18, 20-21. A

summary of the problems Bluebonnet experienced with Graham and Sharing the Love's work is as
follows:
(1)

Billing for services which were not supported by the service record or were
unauthorized. See Id., Exs. 11-12,20;

-2-

(2)

Failure to provide trained backup staff in her absence, having a constant flow
of her subcontractors conducting business with her while she was supposed
to be working with a challenging client. See id., Exs. 4-5;

(3)

Failure to provide complete information regarding an additional site at which
respite services were being provided and an additional person who was on the
lease for this additional site. See id., Exs. 6-7, 15, 17-18;

(4)

Billing for services after authorization expired. See id., Exs. 8-10, 16; and

(5)

Repeatedly not turning notes in on time, turning in notes with errors, and
failing to review subcontractor notes for accuracy despite training and notice
relating to the contract requirements and deadlines. See Id., Ex. 21.

These problems with Graham caused difficulties for Bluebonnet's staff who had to process

Graham's errors and correct them. See Id., Ex. 21. Graham was denied payment for some of the
services which Bluebonnet determined were not properly billed.

While Bluebonnet became increasingly dissatisfied with Graham's work, Graham was also
not happy with Bluebonnet's inspection of her apartment where services were being provided and
the denial ofpayments. Indeed, Graham filed a complaint with the Equal Employment Opportunity

Commission (EEOC) on June 21, 2012. See Supplement of Record [##5-3, 5-4], Exs. 3-4 (EEOC
Charge), at 1. Graham claimed Bluebonnet, among other actions, decreased her pay, denied her pay,
and unfairly inspected her apartment as part of a pattern ofracial discrimination and retaliation. See
Id.

On July 26, 2012, the Texas Work Force Commission (TWC) issued a Dismissal and Notice of

Right to File a Civil Action in response to Graham's complaint. See Def.'s Am. Mot. Summ. J.
[#46-1], Ex.

5

(TWC Decision). The TWC denied Graham's complaint because it found "[t]here

is no employer/employee relationship. The evidence reveals you are an independent contractor."
iffl

-3-

The problems between Bluebonnet and Graham persisted, and eventually Bluebonnet

terminated the contract with Sharing the Love on September 4, 2012, for "continuously failing to
meet the criteria for the provision of services."

See

id.,

Ex. 22. Graham exercised her right to an

appeal of the nonpayment of some of her services, and Bluebonnet denied this appeal on September
18, 2012, citing reasons such as: "poor documentation, submitting paperwork past the required time-

frame, providing an unauthorized service, service time overlap, or inconsistency in dates and times."
See

id.,

Ex.

23.

Graham filed this lawsuit in state court on September 24, 2012, and it was removed to this
Court on October 22, 2012.2 After the Court dismissed Graham's Original Petition for failure to
state a claim, Graham filed an Amended Complaint in which she brought claims for: (1) racial

discrimination and retaliation under 42 U.S.C.

§

1981 and 2000e; (2) interference with contract;

and (3) breach of contract. See Am. Compl. [#12]. Subsequently, the Court dismissed the breach

of contract and interference with contract claims as well as the retaliation claims.

See

Order of Mar.

13, 2013 [#25]. Accordingly, the oniy remaining claims were and are: (1) discrimination under 42

U.S.C.

§

2000e; and (2) discrimination under 42 U.S.C.

§

1981. To the extent Graham attempts to

2This lawsuit is not this Court's first encounter with Graham. First, in 2001, Graham filed a pro se lawsuit
against a shopping mall and a police officer based on an encounter Graham and her husband had with the officer while
shopping. See Graham v. Highland Mall Joint, No. 1:01 -cv-0305-SHC (W.D. Tex. Dec. 8, 2003). She filed claims for:
(I) "impairment of property rights by racial discrimination pursuant to 42 U.S.C. § 1982;" (2) "impairment of
constitutional rights under color of state law pursuant to 42 U.S.C. § 1983;" (3) assault; and (4) slander. Afterthe claims
against the shopping mall were dismissed for failure to state a claim, Graham took her case against the officer to ajury
where she lost on every question. Judgment was entered in favor of the officer and affirmed by the Fifth Circuit on
appeal. Second, in 2006, Graham filed a pro se lawsuit against an assisted care facility after this facility fired Graham
as an employee. See Graham v. The Court at RoundRock, No. I :06-cv-00386-RP (W.D. Tex. Oct. 15,2008). She filed
claims for racial discrimination and retaliation in employment under 42 U.S.C. § 1981 & 2000e, and later retained an
attorney. The Court eventually adopted the Magistrate Judge's Report and Recommendation denying the defendant's
motion for summary judgment, and approximately a year later, after a series of continuances, the Court dismissed the
case after the parties notified the Court they had reached a settlement.

-4-

argue or re-urge any other claim in her filings, the Court rejects such an attempt, and focuses

exclusively on the two remaining, live claims.
Bluebonnet filed a motion for summaiy judgment on February 4,2014, and then an amended

motion for summary judgment on February 18,2014. Graham filed a response, and Bluebonnet filed
a reply.

Analysis
I.

Legal StandardSummary Judgment
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. 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
-5-

conclusory allegations are not competent summary judgment evidence, and thus are insufficient to
defeat a motion for summaryjudgment. 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 summaryjudgment 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).

Rule 56 does not impose a duty on the court to "sift through the record in search of evidence" to

support the nonmovant's opposition to the motion for summary judgment. Id. "Only disputes over
facts that might affect the outcome of the suit under the governing laws will properly preclude the

entry of summary judgment." Anderson, 477 U.S. at 248. Disputed fact issues that are "irrelevant
and unnecessary" will not be considered by a court in ruling on a summary judgment motion. Id.

If the nonmoving party fails to make a showing sufficient to establish the existence of an element
essential to its case and on which it will bear the burden of proof at trial, summary judgment must

be granted. Celotex, 477 U.S. at 322-23.
II.

Application

A.

Discrimination Claim Pursuant to 42 U.S.C. § 2000e
1.

Graham is a Contractor

Title VII makes it unlawful to "discriminate 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." 42 U.S.C.

§

2000e-2(a). In order for a defendant to be

subject to liability under Title VII, there must be an employment relationship between the plaintiff
and the defendant. See Deal v. State Farm Cnly. Mut. Ins. Co.,

5

F.3d 117, 118 n.2 (5th Cir. 1993)

(citing Fields v. Hallsville Indep. Sch. Dist., 906 F.2d 1017, 1019 (5th Cir. 1 990)).The Fifth Circuit
applies a "hybrid economic realities/common law control test" to determine if an employment
relationship exists between a Title VII plaintiff and a defendant. Deal,

5

F.3d at 119 (citing Fields,

906 F.2d at 1019 (5th Cir.1990)). The Fifth Circuit has held that "the most important factor" in

determining whether an employeremployee relationship exists under Title VII is "the 'extent of the

employer's right to control the means and manner of the worker's performance.

. .

."

Bloom

v.

Bexar Cnty., Tex., 130 F.3d 722,726(5th Cir. 1997) (quoting Mares v. Marsh, 777 F.2d 1066, 1067
(5th Cir. 1985) (internal quotation omitted)). The control component considers whether the alleged

employer has the right to hire and fire the employee, the right to supervise the employee, and the
right to set his or her work schedule. See Deal, 5 F.3d at 119 (citation omitted). Additionally, a
court looking to the "economic realities" of the relationship will "determine whether the alleged

employer paid the employee's salary, provided benefits, and set the terms of the employment

relationship." Id. (citation omitted).
Bluebonnet contends Graham was an independent contractor and therefore Bluebonnet is not
subject to Title VII liability in a lawsuit brought by Graham. Graham argues, while she may have

technically been a contractor, she was "misclassified" because she was, in fact, treated just like
employee.
As an initial matter, the summary judgment evidence is clear: officially, Graham was a

contractor. Prior to September 2008, she was an employee, but she formed the company, Sharing

the Love, with the precise purpose ofbecoming a contractor per the advice of Bluebonnet's Director,
Jim Clark. She filed an application to become a contractor for Bluebonnet. From September 2008

until the termination of the parties' relationship in September2012, Graham, as CEO of Sharing the
-7-

Love, had a contractual agreement with Bluebonnet. Graham has repeatedly represented herself as
a contractor until the filing of this lawsuit where she for the first time asserts she was actually treated

like an employee. For instance, in her EEOC Charge, filed in June 2012, she describes her "Current

Position" as "Contractor." EEOC Charge. In her letter accompanying the charge, she refers to

herself as a contractor. For instance, she writes: "In September of 2008, I formed my own company
and started contracting with Bluebonnet Trails providing services through my company, Sharing the

Love Health Care Inc." Id. She describes herself numerous times as "the only contractor" who was
subjected to various forms of mistreatment. Id. She mentions the subcontractors she hired and paid.
Id. In sum, Graham knew she was a contractor, acted as a contractor, and represented herself as a

contractor.

Indeed, her EEOC Charge was denied because the TWC found "[t]here is no

employer/employee relationship. The evidence reveals you are an independent contractor." TWC

Decision.
After clearly self-identifying as a contractor in her EEOC complaint with no suggestion she
was an employee, Graham changes her tune in her Amended Complaint when she asserts:
In 2008 Jim Clark . . . who intentionally discriminated and threatened to fire
[Graham], emailed [Graham] a Contract and told [Graham] to become an
Independent Contractor, [Graham] formed Sharing the Love Health Care, Inc. Even
though [Graham] was considered an Independent Contractor. [Graham] still
performed the same duties as an employee. However [Graham] was denied access
to benefits and protections to which [Graham] was entitled to before under the
Federal and State Law as an employee. [Graham] was required to work at the
Bluebonnet Trails Facility, [Graham] drove the [Bluebonnet] vehicle. [Bluebonnet]
controlled every thing [Graham] did and how [Graham] performed the duties from
8a-5pm Monday-Friday. [Bluebonnet] controlled [Graham's] method of training and
payment. [Bluebonnet] used [Graham] services to best fit [Bluebonnet's] needs.
[Graham] worked as an employee and a Contractor. At the end of the year [Graham]
received a W-2 and a 1099. [Graham] was suppose to be an Independent Contractor
however [Graham] was treated like an employee. [Graham] was the only contractor
treated this way. Jim Clark [Bluebonnet] manipulated [Graham] from being an

employee to become an Independent Contractor. Only to limit, misclassify, and
deprive Plaintiff of her fringe benefits (sick day, paid vacation, medical insurance,
FMLA benefits, 401 (k) contributions, etc.) and overtime pay and denied protections
to which [Graham] was entitled under the Federal and State Law as an employee
while discriminating against [Graham] and later terminating [Graham] because of
race and in retaliation to [Graham's] inquiries about disparate racial treatment.
Am. Compl. [#12], at 2.

Not only does Graham not provide any evidence to support these allegations, the summary
judgment evidence contradicts these assertions. First, Graham has no evidence of Jim Clark's
emails, alleged intentional discrimination, or threats to fire her. In her deposition, she said she had

lost access to her email account and therefore admitted she had no evidence of any emails from
Clark, or of any claims she made from 2005 to 2008 about Clark's racial discrimination against her.
See

Def. 's Mot. Summ. J. [#46-3], at 70:1-71:3. Moreover, Graham indicated in her deposition she

followed Jim Clark's advice to form a company and become a contractor because it was a "good
idea," not because of some threat or coercion on the part of Clark.

See

id.

at 131:5-25. Indeed,

Graham followed Clark's advice in forming Sharing the Love Health Care, Inc. sometime in 2007
or 2008, and then in 2012 again followed his advice to create a d/b/a of Sharing the Love Health
Care, Inc., called Sharing the Love Community Support. See id. at 130:1-21. She indicated she took

both of these actions in order to be able to grow an independent business, market directly to
consumers, and move beyond just working for Bluebonnet.

See

Id.

at 130:1-131:25. In other words,

the record indicates Graham made the decision to move from an employee to an independent

contractor in order to develop a business and make more money, not due to some coercive attempt

by Bluebonnet to deprive her of employee benefits based on her race.

In addition, Graham's claims that Bluebonnet controlled her work because she was required

to work at the Bluebonnet Facility matter little when she also admitted she performed at least some

of her services under the contract with Bluebonnet out of her home, out of another apartment she
rented, and out of the residences of the clients.

See

id.,

103:17-105:7, 108:10-20.

'While Graham

was apparently required to work certain hours at Bluebonnet's facility, this restriction was specified
in the contract she signed and applied only to one particularly difficult client.

See

EEOC Charge.

Graham agreed to provide services to this client when all the other contractors would not. Id. There
is no evidence Graham drove the Bluebonnet vehicle, and there is no evidence Bluebonnet controlled

everything Graham did from

8

a.m. to

5

p.m. There is evidence from Graham's own statement,

however, that she hired subcontractors and conducted services from places other than Bluebonnet's
facility, including her own residence and apartment.
In sum, it is clear Graham was a contractor, not an employee. In fact, Graham concedes as

much, but merely argues (for the first time in this lawsuit) she was treated as an employee due to

Bluebonnet's control over her work. The summary judgment evidence indicates, however, Graham
had a great deal of control as CEO of Sharing the Love. Bluebonnet could not fire Graham from her
CEO position or control Graham's treatment of her own subcontractors.

While there were

contractual parameters on the relationship between Graham and Bluebonnet, there was not the sort

of control which would lead to a finding Graham was an employee of Bluebonnet. Indeed, Graham
specifically decided to transition from her position as an employee, and formed a company so she
could be an independent contractor. She did so in order to develop her own business and increase
her pay.

-10-

Because Graham was an independent contractor, she cannot bring a claim against Bluebonnet
under 42 U.S.C.

§

2000e, and therefore Bluebonnet is entitled to judgment as a matter of law on

Graham's discrimination claims made pursuant to this statute.
2.

Alternatively, Graham has Failed to Exhaust Administrative Remedies

Before an individual can pursue a Title VII claim in federal court, she must first exhaust her

available administrative remedies. See Taylor v. Books a Million, Inc., 296 F.3d 376, 378-79 (5th
Cir. 2002). Exhaustion occurs when an individual files a timely complaint with the EEOC, her claim

is dismissed by that agency, and the agency informs her of her right to sue in federal court. 42

U.S.C.

§

2000e-5(f)(1). The scope of the exhaustion requirement has been defined with two

competing Title VII policies in mind. "On the one hand, because 'the provisions of Title VII were
not designed for the sophisticated,' and because most complaints are initiated pro se, the scope of
an EEOC complaint should be construed liberally." Pacheco v. Mineta, 448 F.3d 783, 789 (5th Cir.

2006) (quoting Sanchez v. Standard Brands, Inc., 431 F.2d 455, 463 (5th Cir. 1970)). At the same
time, "a primary purpose of Title VII is to trigger the investigatory and conciliatory procedures of

the EEOC, in attempt to achieve non-judicial resolution of employment discrimination claims." Id.
(citing Sanchez, 431 F.2d at 466). Balancing these policies, courts "interpret[] what is properly
embraced in review of a TitleVu claim somewhat broadly, not solely by the scope of the

administrative charge itself, but by the scope of the EEOC investigation which 'can reasonably be

expected to grow out of the charge of discrimination." Id. (quoting Sanchez, 431 F.2d at 466).
In the instant case, Graham filed her EEOC complaint on June 21, 2012, and she complains

of discrimination and retaliation occurring roughly from March to May of 2012. The alleged
discrimination took the form of reduced pay rates and assignments as well as an inspection of one
-11-

of Sharing the Love's service sites. On July26, 2012, the TWC dismissed Graham's claims because
it concluded she was a contractor, and the EEOC adopted the TWC's findings on August 22, 2012.
It was not until September 4, 2012, that Bluebonnet terminated the contract with Sharing the Love,

and Graham filed her lawsuit in state court on September 24, 2012. In her Amended Complaint,

Graham asserts discrimination and retaliation based on generally some of the same conduct which

formed the basis of her EEOC complaint, but it is clear her allegations of discrimination are mostly

centered on the termination of the contract. Her EEOC complaint did not contain any allegations
concerning the termination of the contractindeed it could not since the EEOC Charge of June 2012

pre-dated the termination of the contract in September 2012. For this same reason, even with a
liberal construction the scope of Graham's EEOC complaint does not encompass any allegations of

discrimination premised on the termination of the contract because these allegations could not

reasonablyhave been expected to grow out of Graham's EEOC Charge filed in June 2012. Graham
never gave the EEOC an opportunity to consider the allegation of racial discrimination based on the

termination of the contract and resolve it non-judicially.
Therefore, the Court finds, alternatively, Graham has failed to exhaust her administrative
remedies, and to the extent her claims of discrimination are premised on the termination of the
contract, Bluebonnet is entitled to judgment as a matter of law.
B.

Discrimination Claim Pursuant to 42 U.S.C. § 1981
Section 1981 provides "[a]ll persons within the jurisdiction of the United States shall have

the same right in every State and Territory to make and enforce contracts.

. .

to the full benefit of

all laws and proceedings for the security of persons and property as is enjoyed by white citizen . ..

42 U.S.C.

§

1981(a). Section 1981, though, "[does] not provide a separate cause of action against

-12-

local government entities." Oden v. Oktibbeha Cty., Miss., 246 F.3d 458,462 (5th Cir. 2001) (citing

Jett v. Dali. Indep. Sch. Dist., 491 U.S. 701, 731(1989)). The Supreme Court in Jett "concluded that
plaintiffs must assert a cause of action against state actors under
rights under

§

§

1983 to remedy violations of civil

1981." Id. (citing Jett, 491 U.S. at 731).

In this case, Bluebonnet is a "community center" subject to regulation under the Texas Health
& Safety Code, Chapter 534, and this designation is reflected in the contracts Graham and

Bluebonnet signed. See Def.'s Am. Mot. Summ. J. [#46-1], Exs. 26-27. Texas Health & Safety
Code

§

534.001(c)(1) states that a "community center is: (1) an agency of the State, a governmental

unit, and unit of local government, as defined and specified in Chapters 101 and 102, Civil Practices
and Remedies Code." Therefore, because of this status, Graham must assert a cause of action under
§

1983 to remedy any violation of her rights under

Bluebonnet is entitled to judgment on Graham's

C.

§

§

1981, but she has not done so. Accordingly,

1981 discrimination claim.

Alternatively, Bluebonnet Prevails on Summary Judgment Under the

McDonnellDouglas Burden-Shifting Framework
Even assuming Bluebonnet was not entitled to judgment on the Title VII and

§

1981

discrimination claims for the reasons stated above, Bluebonnet would still prevail at summary

judgment under the traditional race discrimination analysis.
Claims brought pursuant to Title VII and § 1981 should both be analyzed under the "Title
VII rubric of analysis" because "claims of intentional discrimination brought under Title VII and 42

U.S.C.

§

1981 require the same proof to establish liability." Byers v. Dali. Morning News, Inc., 209

F.3d 419, 422 n.1 (5th Cir. 2000) (citing Wallace v. Tex. Tech Univ., 80 F.3d 1042, 1047 (5th Cir.
1996); Anderson v. Douglas & Lomason Co. Inc., 26 F.3d 1277, 1284 n.7 (5th Cir. 1994)).

-13-

To survive a motion for summary judgment on a claim of racial discrimination under the

"Title VII rubric of analysis," a plaintiff must first establish aprimafacie case by a preponderance

of the evidence. McDonnellDouglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). Aprimafacie
case of discrimination may be established through evidence demonstrating the plaintiff: (1) belongs
to a protected class; (2) was qualified for the position; (3) suffered an adverse action; and (4) either

was replaced by someone outside the protected class or was treated less favorably than other

similarly situated persons outside the protected class. McCoy
556 (5th Cir. 2007); Okoye v. Univ.

2001).

v.

City of Shreveport, 492 F.3d 551,

of Tex. Hous. Health Sci. Ctr., 245 F.3d 507, 5 12-13 (5th Cir.

In the discrimination context, "[a]dverse employment actions include only ultimate

employment decisions such as hiring, granting leave, discharging, promoting, or compensating."
McCoy, 492 F.3d at 559 (quoting Green v. Adm 'rs

of Tulane Educ. Fund, 284 F.3d 642, 657 (5th

Cir. 2002)). Once a prima facie case of discrimination is established, the burden shifts to the

defendant to articulate a legitimate, non-discriminatory reason for its actions. Bryan
& Co., Inc., 375 F.3d 358, 360(5th Cir. 2004).

v.

McKinsey

If the defendant meets this burden, the plaintiff must

then offer sufficient evidence to raise a genuine issue of material fact as to whether the defendant's
reasons are either: (1) false or unworthy of credence and, thus, merely a pretext for discrimination;
or (2) true, but only a part of the motivation of which discriminatory animus was also a part. Rachid
v.

1.

Jack in the Box, Inc., 376 F.3d 305, 312 (5th Cir. 2004).

Prima Facie Case of Discrimination
Graham satisfies her prima facie burden with respect to the first two factors. First, she is a

member of a protected class as an African-American. Second, she was qualified for the position.
Graham encounters trouble with the third and fourth factors.

-14-

Concerning evidence of an "adverse employment action," the termination of the contract
would normally constitute such an action, but the Court reiterates Graham did not exhaust her
administrative remedies concerning discrimination claims premised on this event. The Court,
though, proceeds under the assumption the termination of the contract satisfies the "adverse

employment action" requirement.
The potential "adverse employment actions" actually contained in Graham's EEOC
complaint include alleged pay reductions, denial of pay, requirements she work at Bluebonnet's
facility, and inspections of the sites where she provided services. There is evidence in the record to

support these actions. The Court finds requirements Graham work in a particular location and the
inspections ofher work sites do not constitute "adverse employment actions," but pay reductions and
denials of payment do because they fit into the category of "compensation." Therefore, Graham

satisfies her burden with respect to evidence of an "adverse employment action."
Graham, though, fails to satisfi her burden on the fourth prong of the prima facie claim

because she provides no evidence she was replaced by someone outside the protected class or was
treated less favorably than other similarly situated persons outside the protected class. Throughout
her pleadings, Graham suggests she was the only contractor to be subjected to certain unfair
treatment. For example, in her Response, she writes: "[Bluebonnet] denied [Graham] the ability to
work out her home [Bluebonnet] Violated [Graham] Civil Rights by denying [Graham's] Foster Care

Application due to [Graham's] race; while approving other non-black Contractor's like Shelly Steed
and BJ Mlasko Foster Care Application." Resp. to Def.'s Am. Mot. Summ. J. [#50], at 3. Graham

provides no evidence to support any aspect of this specific allegation, just as she provides no
evidence of the fourth prong of her prima face case for discrimination.
-15-

Therefore, the Court finds Graham has failed to satisfy her burden and establish a prima facie
case of discrimination.
2.

Bluebonnet's Legitimate, Non-Discriminatory Reasons for its Actions
Even assuming Graham had satisfied her prima facie burden, Bluebonnet has responded by

satisfying its burden of articulating a legitimate, nondiscriminatory reason for its actions. There is
ample evidence in the record indicating Graham was not complying with the terms of the contract
and causing numerous issues for Bluebonnet.

See

Def.'s Am. Mot. Summ. J. [#46-1], Exs. 26-27.

For instance, there is evidence of correspondence sent from Bluebonnet to Graham relating to issues
like: (1) billing for services which were not supported by the service record or were unauthorized;
(2) failing to provide trained backup staff in her absence; (3) having a constant flow

of her

subcontractors conducting business with her while she was supposed to be working with a
challenging client; (4) failing to provide complete information regarding additional site at which

respite services were being provided and an additional person who was on the lease for this
additional site; (5) billing for services after authorization expired; and (6) repeatedly not turning

notes in on time, turning in notes with errors, and failing to review subcontractor notes for accuracy
despite training and notice relating to the contract requirements and deadlines.

See

id.,

Exs.

4-12,

15-18, 20-21.
In short, Bluebonnet provides substantial evidence Graham was not complying with the terms

of the contract and was doing a sub-standard job under the contract. This evidence explains, among
other actions, why Bluebonnet terminated its contract with Graham, why Bluebonnet denied certain
payments to Graham, why Bluebonnet paid Graham certain rates for certain work, why it required

Graham to work at certain locations for certain clients, and why it conducted inspections of
-16-

Graham's unapproved work sites. Indeed, in its letter terminating the contract with Graham,
Bluebonnet explains the reason for the termination was the continuous failure of Sharing the Love
to meet the criteria for provision of services under the contract.

See

id.,

Ex. 22.

Bluebonnet, therefore, has satisfied its burden of articulating legitimate, non-discriminatory

reasons for its actions.
3.

No Evidence of Pretext or Racial Motivation
Since Bluebonnet satisfied its burden, Graham must offer sufficient evidence to raise a

genuine issue of material fact as to whether the defendant's reasons are either: (1) false or unworthy

of credence and, thus, merely a pretext for discrimination; or (2) true, but only a part of the
motivation of which discriminatory animus was also a part. Graham provides no evidence on these
points.

There is no evidence these articulated reasons are false, and there is no evidence

Bluebonnet's actions were motivated by racial or discriminatory animus in any way whatsoever.
In sum, there is no genuine issue of material fact on the merits of Graham's racial

discrimination claim under the Title VII burden-shifting analysis, and for this alternative reason,
Bluebonnet is entitled to judgment on Graham's discrimination claims under both 42 U.S.C. § 2000e
and 42 U.S.C.

§

1981.

Conclusion
Accordingly,
IT IS ORDERED that Defendant's Motion for Summary Judgment [#38] is

DISMISSED AS MOOT;
IT IS FURTHER ORDERED that Defendant's Amended Motion for Summary

Judgment [#46] is GRANTED;
-17-

IT IS FURTHER ORDERED that Defendant's Motion to Strike Experts [#49] is

DISMISSED AS MOOT;
IT IS FINALLY ORDERED that Defendant's Motion to Strike Exhibits [#5 1] is

DISMISSED AS MOOT.
SIGNED this the

2-

day of April 2014.

SAM SPARKS
UNITED STATES DISTRICT JUDGE

977 msj ordjtw.frm

-18-