Williams v. City of Austin
Filing
71
ORDER GRANTING IN PART AND DENYING IN PART 42 Sealed Motion; DISMISSING AS MOOT 62 Objections and Motion to Strike Evidence Attached to Plaintiff's Response. Signed by Judge Sam Sparks. (ml)
r1:
P
IN THE UNITED STATES DISTRICT COUR16 M.R
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
16
P?
2:
32
BLAYNE WILLIAMS,
Plaintiff,
-vs-
Case No. A-14-CA-695-SS
CITY OF AUSTIN,
Defendant.
ORDER
BE IT REMEMBERED on this day the Court reviewed the file in the above-styled cause, and
specifically Plaintiff Blayne Williams' Third Amended Complaint [#3 3]; Defendant City ofAustin's
Motion for Summary Judgment [#42]; Plaintiffs Response [#64] thereto; Defendant's Reply [#67]
in support; and Defendant's Objections and Motion to Strike Evidence Attached to Plaintiff's
Response [#62]!. Having considered the documents, the governing law, the arguments of the parties,
and the file as a whole, the Court now enters the following opinion and orders.
Background
This is a Title VII employment discrimination case brought by Plaintiff Blayne Williams, an
African-American Austin Police Department (APD) police officer, against Defendant City of Austin,
his employer. Williams claims the City retaliated and discriminated against him on the basis of his
race by initiating three internal affairs investigations into his conduct as an officer, indefinitely
suspending him from APD, and bypassing him three times for a promotion.
Because the Court reaches the same conclusion even considering the objected-to portions of Plaintiff's
exhibits, the City's objections are DISMISSED AS MOOT.
I
Williams seeks declarations the City violated federal and state law, as well as a Meet and
Confer Agreement entered into between the City and the Austin Police Association, by failing to
provide him with sufficient notice of the complaints against him and by not providing him a
meaningful opportunity to be heard. Finally, Williams seeks a declaration the City violated Article
55
of the Texas Code of Criminal Procedure by violating an expunction order. The facts, taken in
the light most favorable to Williams, are as follows.2
I.
HEB Incident
On February 11, 2011, while off-duty and in plain clothes, Williams was involved in an
physical altercation with an HEB grocery store employee after the employee cut him in line at the
store's ATM.
See
Mot. Summ. J. [#42-2] Ex. B at 010085. At the conclusion of an Internal Affairs
(IA) investigation into his conduct, Williams was found to have violated the following four policies:
(1) Responsibility to Know and Comply (all laws); (2) Police Involvement when Off-duty/Reporting
of Incident; (3) Acts Bringing Discredit to the Department; and (4) Requirements of Duty/Devotion
ofTime and Attention. Id. at 010005. After a Disciplinary Review Hearing (DRH), Williams agreed
to a temporary 90-day suspension as well as a one-year probationary period beginning at the
conclusion of the suspension. Id. [#42-6] Ex. D at 008889.
2
Court's task ofrecounting the facts and arguments in this case was made exponentially more complicated
by the incoherence of Williams' Response brief. Aside from generally being difficult to understand, the filing contained
many simple spelling, citation and formatting errors. There is no excuse for such shoddy briefing, especially here, where
the Court twice extended counsel's filing deadline. Further, even with the additional time, Williams failed to meet the
amended deadline because his counsel attempted to file over a thousand pages of exhibits at the last minute and the
electronic filing system rejected the submission. What followed is no less than five separate motions for leave to file
sealed documents out of time, docketed over the course of four consecutive days past the filing deadline. Counsel's
competency here fell far below the standards of federal practice and the Court is not confident Williams has been
adequately represented in this matter.
-2-
In April2012, Williams filed a charge of discrimination with the EEOC, claiming the 90-day
temporary suspension was a product of race discrimination.
See
id.
[#42-13] Ex. I. Williams
subsequently filed suit in state court and, on October 14, 2013, the district court granted summary
judgment in favor of the City and dismissed the suit with prejudice.
II.
See
id.
[#42-15] Ex. L.
The Hyatt Incident
Approximately one year after he filed his EEOC charge, Williams was again investigated for
police misconduct. The incident occurred on April 10, 2013, while Williams was working his
approved secondary employment as a Manager On-Duty/Security Person for the Hyatt Regency
Austin. At approximately 6:30 pm, Williams was notified that a female hotel guest complained
about finding a cell phone concealed in the ceiling partition above her guestroom bathroom.
See Id.
[#42-3] Ex. B-i at 010321. The Hyatt manager on duty believed the cell phone belonged to a hotel
engineer who had misplaced it in the ceiling after working in the area and asked Williams to
investigate and verify the complaint. When he arrived, Williams saw that one of the ceiling
partitions had been moved and that there was a hole the circumference of a pen or a pencil in one
of the partitions directly over the shower. Williams recorded a short video of the scene and
photographed the partitions. Williams then reached behind the ceiling partitions and recovered a cell
phone which was powered off. Williams powered the phone back on, but its battery died before
Williams could confirm whether it had been used to make any illicit recordings.
Williams then brought the phone back to the assistant manager on duty, explaining that the
phone had been found in the ceiling and that "this was possibly a felony incident of improper video
or photography." Id. [#42-3] Ex. B-i at 010322. Williams made a number of attempts to locate a
charger for the phone but was ultimately unsuccessful. Williams also returned to the room with a
-3-
member of the Hyatt's engineering team to further investigate the likelihood the hole was created
by one of the engineers as part of their duties rather than as part of a potential crime. Williams was
aware engineering employees often performed electrical work above the ceiling partitions and the
phone he located was the same type used by engineers in the performance of their duties. At the end
of his shift, he took the cell phone to the security department and left a note directing the head of
security to charge the phone and to find, fire, and prosecute the employee if any improper video or
photography was found. Id. [#42-2] Ex. B at 010262. Williams then briefed another security officer
and completed an internal hotel incident report. Williams did not write an APD incident report and
did not call APD to respond.
The following day, security personnel were able to power up the phone and found material
leading them to believe a Hyatt employee had been improperly filming guests.
immediately
contacted.3
APD was
Once notified, Williams' supervisors instructed Williams to write a
supplemental report regarding the incident and submit it to the department.
See also
id.
[#42-2] Ex.
B at 010262-63.
III.
Hyatt Internal Affairs Investigation and Discipline
Based on Williams' failure to generate an offense report and failure to seize the phone as
evidence, Commander Fred Fletcher initiated an IA investigation into the incident in April 2013.
On September 3, 2013, at the conclusion of the investigation, Williams was notified that two policy
violations had been sustained: (1) Incident Reporting and Documentation; and (2) Property and
Evidence Collection Procedures.
See Id.
[#42-3] Ex. B at 010244 (First Notice of Sustained
Hyatt ultimately terminated the employment ofthe employee suspected ofvideotaping hotel guests. Criminal
charges were also filed.
Allegations). The disciplinary recommendation from Williams' chain of command was "Written
Recommendation to
3
days."
On September 20, 2013, after a Disciplinary Meeting (DM), Williams received a second
Notice of Sustained Violations. The second notice added two new policy violations to the original
two sustained in the first
noticeNeglect of Duty and Honestybringing the total number of
violations to four. Id. [#42-3] Ex. B at 010238-39 (Second Notice of Sustained Allegations). With
regard to the Honesty violation, Williams was alleged to have lied about his level of suspicion a
crime had taken place at the Hyatt in order to hide or mitigate his culpability for failing to preserve
the phone as evidence or document the incident with APD. Id. The disciplinary recommendation
from Williams' chain of command for the four sustained violations in the second notice was "Up
to Indefinite Suspension." Id. at 010239.
On October 2, 2013, after a DRH with Chief Art Acevedo and his chain of command,
Williams was indefinitely suspended. Id. [#42-5] Ex. D at 008882-88 (Indefinite Suspension
Mem.).4
According to the disciplinary memorandum, Williams was indefinitely suspended for
failing to understand and perform his duties and obligations as a police officer, making contradictory
statements to investigators and his chain of command,5 his inability to take responsibility for his
actions, and his disciplinary history, including the 90-day suspension related to the HEB Incident.
Id
Indefinite suspension is the equivalent of dismissal.
TEX. LOcAL Gov'T CODE
§ 143.052(2).
In an affidavit prepared for this litigation, Acevedo explained that "Williams was trying to have it both
wayson the one hand he suspected a crime had occurred and the situation needed further investigation, on the other
hand he didn't believe a crime had occurred and therefore it was appropriate for him to allow civilians to handle the
situation." Id. [#42-10] Ex. G at 7 (Acevedo Affidavit).
-5-
Williams appealed his indefinite suspension to a third-party hearing examiner. On October
31, 2014, the hearing officer issued an order sustaining three
of the violations but overturning the
Honesty violation. Id. at 010855-65 (Hearing Examiner Op.). The hearing examiner found that the
disciplinary memorandum failed to identify precisely which statements were alleged to be
contradictory or conflicting and that the Honesty violation could not be sustained based solely on
Acevedo' s subjective belief Williams was lying. id. at 010862. Considering the three sustained
violations, and considering the prior discipline arising from the HEB Incident, the hearing examiner
found that "the appropriate discipline does not rise to the level of an indefinite suspension but clearly
arises above a suspension of more than 15 days." Id. at 010865. However, because the examiner
only has the authority to reduce the indefinite suspension to a temporary suspension of 15 days or
less, the examiner instituted a 15-day suspension.
See
Id.
at 010864-65 (citing Waco v.
Kelly,
309
S.W.3d 536, 542 (Tex. 2010)). As a result of the hearing examiner's decision, Williams was
reinstated to his previous position and given back pay and benefits in the amount of $45,604.58. Id.
[#42-14] Ex. K at 009828-31.
III.
The Pit Bull and Williamson County Incidents
After the Hyatt Incident, but before his indefinite suspension, Williams was involved in two
additional incidents leading to the initiation of IA investigations into Williams' conduct. The first
occurred on June 20, 2013, when Williams responded to reports of an aggressive pit bull. Id. [Ex.
#42-3] Ex. B-I at 010543. After he arrived, the dog became aggressive and Williams was forced
to shoot the animal. When the first shot was ineffective, Williams followed the animal back between
two houses and, when it charged at him again, fired several more shots, killing the dog. Id. at
010544.
The second incident, involving an off-duty domestic dispute at his daughter's apartment in
Williamson County, occurred on September 13, 2013. While helping his daughter move out of her
apartment, Williams was involved in a physical tussle with his daughter's boyfriend. Id. at 010592.
The boyfriend was ultimately placed under arrest based on an active misdemeanor warrant and no
Williamson County charges were brought against Williams.
APD commenced investigations into both of these incidents; however, the investigations
were administratively closed after Williams was indefinitely suspended due to the Hyatt Incident.
No employment action has been taken against Williams based on either of these two incidents.
IV.
Promotional Bypass
On May 5, 2014, while indefinitely suspended, Williams was bypassed three times for a
promotion to the rank of Detective/Corporal. The positions were instead filled by the next three
officers on the eligibility list. Id. [#42-6] Ex. D at 008703 (Promotional Bypass Mem.). The
promotional bypass memorandum, signed by Acevedo and filed with the Civil Service Commission,
states that Williams was the first eligible candidate for promotion to the three vacant positions and
that Williams would be entitled to promotion unless there was a "valid reason" for bypassing him.
Id. (citing TEx. LOCAL GOv'T CODE § 143.036(f)). According to the memorandum,
Acevedo's
"decision to bypass Officer Williams three times [was] based on [his] indefinite suspension of
Williams on October 2, 2013." Id.
Acevedo also based the decision on Williams' previous
disciplinary history, including the HEB Incident and 90-day suspension arising therefrom, as well
as Williams' other work history. Id. at 008703, 008708. As a result of being bypassed three times,
Williams' name was removed from the promotional eligibility list pursuant to state law.
-7-
Williams appealed from the memorandum. Among other arguments, Williams maintained
that bypassing him three times in one memorandum without affording him notice and opportunity
to be heard violated Texas law, that Acevedo improperly relied on expunged information related to
his 90-day suspension that should have been redacted, and that there was no basis to bypass Williams
considering his indefinite suspension was later overturned on appeal. Id. [#42-5] Ex. D at 011820
(Promotional Bypass Op.). On June 8,2015, the independent third-party examiner upheld Acevedo' s
decision to bypass Williams for the promotion. Id. Importantly, the examiner held that the "three-inone bypass" was not impermissible under Texas law, and that although Acevedo had should not have
considered expunged material related to the HEB Incident, such material did not influence the
decision to bypass Williams. Id. [#42-6] Ex. D-1 at 10-12.
VI.
Procedural History
Williams filed a charge of discrimination with the EEOC on March 27, 2014, and received
his right-to-sue letter on April 30, 2014.
in this court on July 29, 2014.
See
See
Third Am. Compi. [#33-2] Ex. B. Williams filed suit
Orig. Compl. [#1]. On July 23, 2015, the City filed its answer,
but did not move to dismiss any of Williams' claims.
See Answer
[#34]. On January 12, 2016, the
City filed the instant Motion for Summary Judgment, seeking judgment in its favor on each of
Williams' claims.
See
Mot. Summ. J. [#42]. The motion has been fully briefed and is ripe for
consideration.
Analysis
I.
Legal Standard
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
-8-
that the moving party is entitled to judgment as a matter of law.
v.
FED. R. Civ. P.
56(a); Celotex Corp.
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
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 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).
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.
Williams' Title VII Claims
Williams claims the City's "handling of the Hyatt Incident" and his three promotional
bypasses constitute intentional race discrimination and were in retaliation for engaging in protected
activitynamely filing a charge of discrimination. See Resp. [#64] at 17,
1
96 In
response, the City
argues Williams failed to establish a prima facie case of discrimination or retaliation, and, even if
had, the City has articulated legitimate, nondiscriminatory reasons for the employment actions and
Williams has failed to establish the City's proffered reasons were pretextual. For the reasons that
6
Williams also brings hostile work environment and retaliatory harassment claims against the City. See Third
Am. Compi. [#33] ¶ 29, 31. Having reviewed the record, and taking the evidence in the light most favorable to
Williams, the Court can find no evidence ofharassment in this case, let alone any harassment based on race or retaliation.
The majority of the alleged discriminatory or retaliatory acts, such as the handling of the Hyatt Incident investigation,
the indefmite suspension, and the promotional bypasses, are discrete acts which do not contribute to a workplace
"permeated with discriminatory intimidation, ridicule, and insult." See Moini v. Univ. of rex. at Austin, No. A-I 0-CA180-SS, 2011 WL 90472, at *10 (W.D. Tex. Jan. 10, 2011). In his self-serving affidavit, Williams points to only two
other instances to support his conclusion he was "treated adversely" after filing his EEOC charge and based on his race.
Resp. [#64-8] Ex. 28 at 6-7. The first instance involves his superiors blaming him for failing to activate an in-car camera
in connection with an arrest; the second involves negative performance evaluations based on failure to submit police
reports. Id. Despite his accusations to the contrary, there is no objective evidence either of these alleged acts were
motivated by illicit race discrimination or retaliation. Williams' subjective beliefs are not sufficient to support either
a hostile work environment or retaliatory harassment claim. Bauer v. Albemarle Corp., 169 F.3d 962, 967 (5th Cir.
1999). Consequently the Court finds there is no evidence any of the conduct cited by Williams was "sufficiently severe
or pervasive to . . create an abusive work environment," Ramsey v. Henderson, 286 F.3d 264, 268 (5th Cir. 2002), and
the Court GRANTS summary judgment in favor of the City on Williams' hostile work environment and retaliatory
harassment claims.
.
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follow, the Court agrees with the City and finds it is entitled to summary judgment on Williams'
Title VII discrimination and retaliation claims.
A.
Title VII Burden-Shifting Framework
"Assuming a plaintiff has exhausted his administrative remedies, he may prove a claim of
intentional discrimination or retaliation either by direct or circumstantial evidence." McCoy v. City
of Shreveport, 492 F.3d 551, 556 (5th Cir.
When a plaintiff bases his or her claims on
2OO7).
circumstantial evidence of discrimination, courts analyze those claims under the burden-shifting
framework articulated in McDonnell Douglas Corp.
v.
Green, 411 U.S. 792 (1973). Id. Under that
framework, the plaintiff must first establish a prima facie case of discrimination or retaliation. Id.
"If the plaintiff makes a prima facie showing, the burden then shifts to the employer to articulate a
legitimate, nondiscriminatory or nonretaliatory reason for its employment action." Id. at 557.
However, "[t]he employer's burden is only one of production, not persuasion, and involves no
credibility assessment." Id. "If the employer meets its burden ofproduction, the plaintiff then bears
the ultimate burden of proving that the employer's proffered reason is not true but instead is a pretext
for the real discriminatory or retaliatory purpose. To carry this burden, the plaintiff must rebut each
nondiscriminatory or nonretaliatory reason articulated by the employer." Id.
B.
Prima Facie CaseDiscrimination and Retaliation
The Supreme Court has cautioned, because the facts of each Title VII case will vary, the
prima facie proof required may likewise vary. See McDonnell Douglas, 411 U.S. at 802 n. 13 ("The
Williams argues the Court need not apply the McDonnell Douglas burden-shifting framework here because
there is sufficient direct evidence of discrimination to send the case to the jury. See Resp. [#64] at 20-21. This argument
cannot be taken seriously; there is no evidence on the record tending to prove "the fact of discriminatory animus without
inference or presumption." Sandstadv. CB Richard Ellis, Inc., 309 F.3d 893, 897(5th Cir. 2002). Because the evidence
presented by Williams is circumstantial in nature, the Court must apply McDonnell Douglas.
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facts necessarily will vary in Title VII cases, and the specification above of the prima facie proof
required from respondent is not necessarily applicable in every respect to differing factual
situations."). In this case, however, the standard Fifth Circuit prima facie elements of discrimination
and retaliation are appropriate.
1.
Discrimination
To establish a prima facie case of intentional discrimination, Williams must show he: (1) is
a member of a protected group; (2) was qualified for his position; (3) was discharged or suffered
some adverse employment action by the employer; and (4) was replaced by someone outside his
protected group or was treated less favorably than other similarly situated employees outside the
protected group. McCoy, 492 F.3d at 556. The only elements in dispute in this case are (3) and (4).
2.
Retaliation
To establish a prima facie case of retaliation, Williams must show: (1) he participated in an
activity protected by Title VII; (2) his employer took an adverse employment action against him; and
(3) a causal connection exists between the protected activity and the adverse employment action.
Id. at 556-57. The only elements in dispute in this case are (2) and (3).
3.
"Adverse Employment Action"
In the Fifth Circuit, there are two different standards for what constitutes an actionable
"adverse employment action" under Title VII. In the context of a discrimination claim, oniy
"ultimate employment
decisions"such as hiring, granting leave, discharging, promoting, or
compensatingare actionable.
See McCoy,
492 F.3d at 560 ("[Olur precedent recognizing only
'ultimate employment decisions' as actionable adverse employment actions remains controlling for
Title VII
discrimination
claims
. . .
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The standard is lower for retaliation claims, however. Specifically, for an action to be an
"adverse employment action" in the context of a retaliation claim, "a plaintiff must show that a
reasonable employee would have found the challenged action materially adverse, which.
. .
means
it well might have dissuaded a reasonable worker from making or supporting a charge of
discrimination." Burlington N. & Santa Fe Ry. Co.
v.
White, 548 U.S. 53, 68 (2006) (quotations
omitted).
C.
Application
Williams does not specifically list the employment actions on which his claims are based,
instead labeling both the "handling of the Hyatt Incident" and the promotional bypasses
discriminatory and retaliatory. Reading "handling of the Hyatt Incident" broadly and in the light
most favorable to Williams, it appears Williams claims the following actions taken by Acevedo and
his chain of command to be discriminatory or retaliatory: (1) initiation of the IA investigation into
the Hyatt, Pit Bull, and Williamson County Incidents; (2) his indefinite suspension; and (3) the three
promotional bypasses. The Court will address each in turn.
1.
Prima Facie CaseEmployment Discrimination
Williams has failed to establish a prima facie case of intentional discrimination, and, even
if he had, he has failed to rebut the City's legitimate, nondiscriminatory reasons for each allegedly
improper employment action.
Williams first claims his chain of command's decision to "file on him" for his role in the
Hyatt, Pit Bull and Williamson County Incidents was motivated by racial bias. However, the
initiation of an investigation into alleged misconduct does not constitute an adverse employment
action for purposes of Title VII discrimination claims. See, e.g., Cardenas-Garcia v. Tex. Tech.
-13-
Univ., 118
F. App'x 793, 794 (5th Cir. 2004) ("Performance reviews and investigations.
. .
do not
qualify as ultimate employment actions.").
While the City's decision to indefinitely suspend Williams and bypass him for three
promotions do constitute adverse employment actions, Williams has still failed to meet his prima
facie burden because he has presented no evidence of similarly situated individuals outside his
protected class who were treated favorably under "nearly identical circumstances."
Kansas City
S.
Ry.
See Lee
v.
Co., 574 F.3d 253, 260 (5th Cir. 2009).
With regard to his indefinite suspension, Williams contends he has met the fourth prong of
his prima facie case by identifying two APD police officersOfficers Frank Corpus and Richard
Willwho, unlike him,
dishonesty.8
were not indefinitely suspended as punishment based on allegations of
The Court disagrees. Although Officers Corpus and Will had the same job duties and
answered to the same ultimate decision maker, Williams has not shown the officers have an
essentially comparable violation history or that their adverse employment actions were taken under
"nearly identical circumstances."
See Lee,
574 F.3d at 260. Indeed, unlike Williams, the record does
not establish Officer Corpus or Officer Will had any serious past policy violations on their records.
Further, the difference between Williams' conduct and that of Officers Corpus and Will accounts
for the difference in their treatment; specifically, unlike Williams, Officer Corpus was not accused
8
Williams identifies another four potential comparators in his interrogatoriesWilliam Norrell, Robert
Escamilla, Steve Jones, and William Lefebvrebut then makes no mention of them in his Response. The Court finds
Williams has waived any argument these individuals were similarly situated. Alternatively, the Court finds none of these
officers are similarly situated to Williams. For example, whereas Williams had a 90-day agreed temporary suspension
on his employment record, none of these other officers had ever been suspended while working for APD. See Lee, 574
F.3d at 260 (The employment actions being compared will be deemed to have been taken under nearly identical
circumstances when the employees being compared. . . have essentially comparable violation histories.").
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of giving a false official statement and Officer Will was not accused of violating the Honesty policy.
Id.
To establish a prima facie case of discrimination based on a failure promote, Williams must
present evidence the position he sought was filled by someone outside his protected class. As the
Promotional Bypass Memorandum establishes, Acevedo filled the three vacant Detective/Corporal
positions with Officers Loren Molleur, Jeff Dwyer, and Craig Nelson Smith.
See
Mot. Summ. J.
[#42-5] Ex. D at 011820 (Promotional Bypass Mem.). Williams, however, has not pointed to any
evidence of these individuals' race, which is ultimately fatal to his claim.
Further, Williams has not presented evidence of any similarly situated individuals outside
of his protected class who were promoted under nearly identical circumstances. First, none of the
individuals identified by Williams were serving an indefinite suspension at the time of their bypass.
Second, even taking into consideration the reversal of Williams' indefinite suspension, Williams has
failed to identify anyone outside his protected class with a comparable disciplinary history who was
returned to the promotional eligibility list. For example, Officer Jones, who was bypassed three
times but later entered into a settlement agreement with the City whereby Acevedo withdrew the
third bypass and returned Jones to the promotional eligibility list, had only a 10-day suspension
occurring 20 months prior to the bypass in question.
See
Id.
[#42-7] Ex. D-2 at 008697-98 (Jones
Promotional Bypass Mem.). In contrast, Williams had a 90-day suspension in lieu of indefinite
suspension arising from the HEB Incident, as well as a 15-day suspension based on the Hyatt
Incident.
Having failed to meet his prima facie burden of employment discrimination, the City is
entitled to summary judgment on Williams' Title VII discrimination claims.
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2.
Prima Fade CaseRetaliation
Williams also claims the City's "handling ofthe Hyatt Incident," which include initiating the
investigation and the indefinite suspension, as well as the three promotional bypasses, were in
retaliation for his filing of an EEOC complaint in April 2004. As with his discrimination claims,
Williams has failed to make a prima facie case of retaliation.
Again, the City's decision to open investigations into his conduct do not constitute "adverse
employment actions" for purposes ofTitle VII retaliation claims. See Breaux v. City ofGarland, 205
F.3d 150, 158 (5th Cir. 2000) ("[I]nvestigating alleged violations of departmental policies and
making purportedly false accusations are not adverse employment actions"). In contrast, Williams
indefinite suspension and promotional bypasses do constitute adverse employment actions because
they would have dissuaded a reasonable worker from making or supporting a charge of
discrimination.
However, even assuming all of the allegedly improper employment actions were considered
"adverse," Williams' claims still fail because he has not made a prima facie showing of causation.
Williams' primary evidence of a retaliatory motive is the temporal proximity between the filing of
his EEOC charge in March 2012 and the initiation of the investigation in April 2013. This theory
has no merit. Although temporal proximity can sometimes establish causation at the prima facie
stage, "the protected act and the adverse employment action must be 'very close' in time to establish
causation by timing alone." Porter v. Houma Terrebonne Hous. Auth. Bd. of Comm 'rs, 810 F.3d
Williams also claims he engaged in protected activity during related and ongoing state court litigation from
October 2012 to October 2013. In its Reply, the City objects to this theory of Title VII liability on the grounds
"Williams' Response is the first time he has ever alleged that the lawsuit was a protected activity that he is complaining
retaliation for." Reply [67] at 8. The City's objection is well taken; the Court declines to entertain this theory. "Raising
an argument in a response to a summary judgment motion fails to place the issue before the Court." See Robuck v. Bank
ofAmericaNA., No. A-13-CA-516-SS ,2014 WL 1342861, at *3 n.3 (W.D. Tex. Apr. 3,2014).
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940, 948 (5th Cir. 2015) (internal citations and quotation marks omitted). Here, over a year elapsed
between the time Williams engaged in protected activity and the initiation of the Hyatt Incident
investigation. This is not "very close." See Hernandez
v.
City of Corpus Christi, 820 F. Supp. 2d
781, 807 (S.D. Tex. 2011) ("The Fifth Circuit has found that gaps of eight or nine months between
a protected activity and an adverse event negate a finding of causation."). The gap between
Williams' protected conduct and his indefinite suspension, the Pit Bull and Williamson County
Incident investigations, and the promotional bypasses, which all occurred after the Hyatt Incident
investigation, are even more attenuated in time. Consequently, the Court refuses to infer retaliatory
motive based solely on the gap in time between Williams' protected act and each of the allegedly
retaliatory actions.
Williams also bases his retaliation claim on the testimony of Officer John McMiller, former
Austin Police Association President Wayne Vincent, and former Assistant Chief of Police Sam Holt,
which, taken together, is presented to establish Acevedo "has a retaliatory nature." Resp. [#64] at
19. This testimony is unworthy of credence. To the extent any ofthese individuals pontificate about
APD employees' fear ofretaliation, this testimony is wholly speculative and not within their personal
knowledge. Similarly, to the extent there is testimony regarding examples of alleged retaliation by
Acevedo against other officers, this testimony is inadmissible hearsay. Finally, having not been
identified or qualified as experts, neither McMiller, Vincent, nor Holt have the authority to offer
opinions about whether Acevedo retaliated against Williams in any particular instance and, even if
they were, their subjective beliefs about Acevedo's motivations are "of little value" as there is no
record evidence corroborating their accounts. See Little v. Republic Ref Co., 924 F.3d 93, 96 (5th
-17-
Cir. 1991) (rejecting testimony plaintiff's former supervisor believed plaintiff's termination was
motivated by discriminatory animus).
Having failed to meet his prima facie burden of establishing any causal connection exists
between the protected activity and the adverse employment actions, summary judgment is due to be
granted in favor of the City on Williams' retaliation claims.
3.
Failure to Establish Pretext
Even assuming Williams could establish a prima facie case of either discrimination or
retaliation, the City is still entitled to summary judgment because Williams has failed to rebut its
legitimate, nondiscriminatory reason for each employment action.
a.
The City's Legitimate, Nondiscriminatory Reasons
As required by McDonnell
Douglas,
the City has proffered a legitimate and
nondiscriminatory reason for each of the allegedly discriminatory and retaliatory employment
actions.
First, with regard to initiating the Hyatt Investigation, the Internal Affairs Complaint states
that Williams was investigated for misconduct during his secondary employment with the Hyatt
because he failed to take police action when he was confronted with evidence that a crime might
have been committed. Specifically, Commander Fletcher's complaint states:
In the course of investigating the complaint, Officer Williams found a device that
may have been involved in the commission of a crime. Officer Williams turned the
device in to the hotel staff and did not tag it, turn it into evidence or initiate an
offense report. Officer Williams might have made a comment to the hotel staff
stating they may have a criminal offense and may want to contact the police
department. If the above information is true and correct, Officer Williams may be
in violation of the Department's policy and/or procedures.
Mot. Summ. J. [#42-3] Ex. B at 10236 (Internal Affairs Compi.).
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With regard to initiating the Pit Bull Incident investigations, the City explains Commander
Fletcher believed Williams may have been in violation of APD policy governing discharging a
firearm to stop a dangerous and aggressive animal when he "followed the dog and discharged the
shotgun at the dog several more times, killing the dog." Id. [#42-5] Ex. B at 010427. With regard
to the Williamson County Incident investigation, the City similarly explained it requested an
administrative inquiry because Assistant Chief of Police Patrick Ockletree believed Williams may
have been in violation of APD policy when Williams "may have made physical contact with the
boyfriend of his daughter." Id. at 010576.
Second, with regard to the indefinite suspension, the City claims Williams was indefinitely
suspended for the following reasons: he had four unanimous sustained policy violations, including
an Honesty violation; a unanimous recommendation of indefinite suspension from his chain of
command; and a prior 90-day agreed suspension which was granted in lieu of an indefinite
suspension.
See
Mot. Summ. J. [#42] at 29. A sustained Honesty violation mandates indefinite
suspension under the Discipline Matrix. Id. [#42-41 Ex. Cat 003465 (APD Policy 902.41), 003484
(APD Policy 903.1). In the memorandum justifying Williams' indefinite suspension, Acevedo also
emphasized as aggravating factors Williams' repeated failure to accept responsibility for his actions,
which lost him the trust and respect of his superiors and his chain of command's confidence in his
future job performance. Id. Specifically, Acevedo stated:
Despite nearly losing his job and being placed on probation, Officer Williams is once
again before me for violations of policy involving his failure to perform the basic
duties and obligations of a police officer. Officer Williams' repeated inability or
unwillingness to perform his duties is further aggravated by his failure to
acknowledge any violation ofpolicy, and his lack of honesty during the interview and
disciplinary process. If Officer Williams cannot truthfully acknowledge his failure
to perform his duties and learn from his past mistakes as evidenced by his repeated
-19-
violations of policy, then his chain of command and I have no choice but to
indefinitely suspend him. . . . Consequently, indefinite suspension is not only
warranted and appropriate, but mandated under all of the facts and circumstances of
this case.
Id. at 0088 86-87.
Finally, with regard to the three promotional bypasses, the City explains that Williams was
bypassed because he was indefinitely suspended when the positions were vacant. Id. [#42-6] Ex. D
TiiiII:Lii
b.
Pretext
As with his accusations of discrimination and retaliation, Williams essentially argues each
of the City's actions between the filing of his EEOC charge in 2012 until the filing of this lawsuit
is evidence that the City's reasons for taking each disputed employment action are pretextual.
Williams' arguments can be broken down into the following four categories: (1) a dispute of the
underlying factual bases for each of the City's actions; (2) a claim the City violated a number of its
own policies in order to indefinitely suspend him and bypass him for the promotions; (3) similarly
situated individuals, whether or not they are within his protected class, have been treated more
favorably by Acevedo; and (4) his and other officers' testimony establish Acevedo has a retaliatory
nature. For the reasons that follow, none of Williams' arguments are sufficient to create a triable
issue with regard to pretext; the evidence clearly demonstrates the City's proffered reasons were real.
First, Williams attempts to relitigate his competency and veracity by disputing the underlying
factual bases for the City's decisions to initiate investigations into his conduct, sustain a violation
ofthe Honesty policy based on his allegedly contradictory statements, indefinitely suspend him from
the force, and bypass him for promotions to a Detective/Corporal position. Williams concentrates
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his argument on the reasons why he did not engage in any misconduct while working his secondary
employment at the Hyatt and why he did not lie or otherwise contradict himself during the
subsequent investigation. However, Williams' disagreement about whether he was required to take
police action upon encountering the cell phone or whether he was attempting to mitigate his
culpability for failing to do so does not support an inference the City's nondiscriminatory reasons
were false. See LeMaire v. La. Dep 'tofTransp. & Dev., 480 F.3d 383, 391 (5th Cir. 2007) ("Simply
disputing the underlying facts of an employer's decision is not sufficient to create an issue of
pretext."); Little, 924 F.2d at 97 ("[A] dispute in the evidence concerning. . . job performance does
not provide a sufficient basis for a reasonable factfinder to infer that [the] proffered reason is
unworthy of credence.").
This conclusion is not altered even where the employer's decision was later overturned on
appealas was Williams' Honesty violation and indefinite suspension.
"[T]he law in this area is
clear: an honest belief in a non-discriminatory reason for discharge, even
if incorrect,
is not
discrimination." Smith v. St. Regis Corp., 850 F. Supp. 1296, 1318 (S.D. Miss. 1994) (citing Wright
v.
Western Electric Co., Inc., 664 F.2d 959, 964 (5th Cir. 1981)). Indeed, "[t]he question is not
whether an employer made an erroneous decision; it is whether the decision was made with
discriminatory motive." Mayberry v. Vought Aircraft Co., 55 F.3d 1086, 1091 (5th Cir. 1995). In
short, Williams' subjective belief he complied with APD policy does not undermine the City's
honest belief he had not. Consequently, his argument fails to suggest the City was motivated by
discriminatory or retaliatory animus. See Shackleford v. Deloitte & Touche, LLP, 190 F.3d 398,
408-09 (5th Cir. 1999).
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Second, Williams argues the City's violation of its own internal policies and procedures, and
the Meet and Confer Agreement, support a finding of pretext. Williams cites two procedural
irregularities he argues cast doubt on the City's legitimate nondiscriminatory reasons. Williams first
claims Acevedo and his chain of command violated the Meet and Confer Agreement as well as
internal policy by sustaining two additional policy violationsNeglect of Duty and
Honestywithout conducting a separate IA investigation into his alleged dishonesty or giving him
proper notice of the new allegations and opportunity to respond. See Resp. [#64] at 15-17.
Williams claims Acevedo again violated City policy and state law by bypassing him three times in
a single memorandum and by improperly relying on expunged material in reaching the conclusion
Williams should not be promoted. Id. at 21, 22, 24. Williams further challenges his indefinite
suspension as a "valid reason" for bypass.
Williams' argument is unconvincing. "A company's failure to follow internal procedures
is generally not enough to create a genuine issue
Grubb
v. Sw.
of material fact as to discriminatory motives."
Airlines, 296 F. App'x 383, 390 (5th Cir. 2008) (citing Moore
v.
Eli Lilly & Co., 990
F.2d 813, 819 (5th Cir. 1993). However, "the nature of the internal policy and the extent of the
deviation in the particular case could give rise to evidence of pretext in light of all the other relevant
facts." Martinez
v. Tex.
Workforce Comm 'nCivil Rights Div., No. A-11-CA-837-LY, 2014 WL
931425, at *7 (W.D. Tex. Mar. 10,2014) (citing Machinchickv. PB Power, Inc., 398 F.3d 345, 355
(5th Cir. 2005)).
There is scant evidence Acevedo' s handling of Williams' disciplinary process or promotional
bypass was irregular, and even if it were, such irregularities would have been de minimis. Williams
was afforded the requisite pre- and post-discipline notice and hearings at each step in his disciplinary
-22-
process, and there is no evidence the City is required to initiate a separate investigation if it believes
the subject of an underlying investigation is being dishonest. Further, the uncontroverted evidence
shows Acevedo routinely includes three bypasses in a single memorandum when there are multiple
vacancies to be filled and he believes there is a valid reason for bypassing an eligible candidate for
each vacancy.
The only clear evidence of any irregularity is the City's release of information that should
have been expunged. However, this evidence does little to establish Acevedo knew the material was
expunged at the time it was released, which would be required to show his reasons for indefinitely
suspending or bypassing Williams were false. Considering the relevant facts in the light most
favorable to Williams, there is no evidence the city was intentionally sidestepping its own policies
for the purpose of subjecting Williams to any discriminatory or retaliatory employment actions.
Third, Williams claims there were similarly situated employees outside his protected class
who were treated more favorably. This argument was already rejected in the context of his prima
facie case and the Court need not delve too deeply into the issue again here. Put simply, none of the
officers identified by Williams were treated favorably under sufficiently similar circumstances such
that a reasonable juror could infer pretext.
Finally, failing to encounter any concrete evidence of improper motive, Williams relies on
his own subjective belief his superiors treated him differently after filing his EEOC complaint, as
well as McMiller, Vincent, and Holt' s speculation regarding Acevedo' s propensity to discriminate
and/or retaliate. Again, the Court has already addressed this argument in the context of Williams'
prima facie case, and the same principles apply here: subjective belief is not a substitute for evidence
of pretext.
Hornsby
v.
Conoco,
Inc.,
777
F.2d 243, 246 (5th Cir. 1985) ("[W]e cannot allow
-23-
subjective belief to be the basis forjudicial relief when an adequate nondiscriminatory reason for the
discharge has been presented.").
In sum, even
if Williams could make out a prima facie case of discrimination or retaliation,
the City is entitled to summary judgment on his Title VII claims because he has failed to create a
genuine dispute of material fact that the City's reasons for undertaking the disputed employment
actions were pretextual.
III.
Requests for Declaratory Judgment
In addition to his Title VII claims, Williams requests declarations the City: (1) violated state
law when if failed to provide Williams with a notice of claims against him in violation of the Meet
and Confer Agreement; (2) violated state or federal law or the Meet and Confer Agreement when
it did not identify which of Williams' acts were in violation of the civil service rules; and (3) violated
Article 55 of the Texas Code of Criminal Procedure when it electronically disseminated information
regarding an expunged matter to the APD community.
See
Third Am. Compi. [#33] ¶ 33. Williams
also requests the Court declare the City violated the Fifth and Fourteenth Amendments of the United
States Constitution, Article 1, Sections 13 and 19 of the Texas Constitution, and 42 U.S.C.
§ 1983
by failing to provide him with adequate notice of the administrative claims, failing to provide him
an opportunity to be heard, and misusing information in his record that had previously been
expunged. Id. ¶ 34.
1.
Federal Law Claims
With regard to his federal claims, it appears Williams brings a
§ 1983
due process claim on
the grounds the City violated his Fifth and Fourteenth Amendment rights when it failed to provide
him adequate pre- and post-deprivation notice and an opportunity to be heard, and further, when it
-24-
impermissibly considered material that had been previously expunged under state law. These claims
are easily dispatched. While a municipality can be subject to liability under
§
1983, such liability
only accrues to the extent the alleged constitutional violations result directly from a city custom or
policy. See Monell v. Dep 't ofSoc. Servs., 436 U.S. 658, 694 (1978); City of Canton v. Harris, 489
U.S. 378,385(1989). Williams does not directly challenge any Citypolicy, and he has not presented
any competent evidence Acevedo or any other City employee engages in a pattern or practice of
knowingly disregarding APD officers' procedural due process rights. See Brown v. Bryan County.,
291 F.3d 450, 457 (5th Cir. 2000) ("[Officia1 policy is a persistent, widespread practice of city
officials or employees, which, although not authorized by officially adopted or promulgated policy,
is so common and well settled as to constitute a custom that fairly represents municipal policy."
(citation omitted)). Indeed, Vincent's inadmissible speculation about APD's response to criticism
being "swift and painful" is not sufficient evidence to create a genuine dispute of material fact with
regard to any allegations of unconstitutional customs. Consequently, summary judgment is due to
be granted in the City's favor on Williams' request for declaratory relief under to § 1983.
2.
State Law Claims
Only Williams' requests for declarations the City's conduct violated state law and the Meet
and Confer Agreement remain. Although the Court may exercise supplemental jurisdiction over
Williams' state law claims, the Court may decline to exercise supplemental jurisdiction if it has
"dismissed all claims over which it has original jurisdiction." 28 U.S.C. § 1367. Because the federal
law claims over which this Court had original jurisdiction have been resolved in the City's favor, the
Court declines to exercise its supplemental jurisdiction over Williams' remaining requests for
declarations under state law.
-25-
Conclusion
Williams has failed to meet his prima facie burden to show Title VII discrimination or
retaliation and, even if he had, there is no admissible evidence the City's legitimate,
nondiscriminatory reasons for indefinitely suspending or refusing to promote him were pretextual.
Further, Williams has failed to present any evidence of a policy or custom of procedural due process
violations by Acevedo or any other member of APD. Accordingly, the City is entitled to summary
judgment on each of Williams' federal claims. Williams' state law claims are dismissed without
prejudice for lack of subject-matter jurisdiction.
Accordingly,
IT IS ORDERED that Defendant City of Austin's Objections and Motion to Strike
Evidence Attached to Plaintiff's Response [#62] is DISMISSED as MOOT;
IT IS FURTHER ORDERED that Defendant City of Austin's Motion for Summary
Judgment [#42] is GRANTED IN PART and DENIED IN PART;
IT IS FURTHER ORDERED that Plaintiff Blayne Williams' Title VII race
discrimination and retaliation claims as well as his
§
1983 procedural due process claims
against the City of Austin are DISMISSED WITH PREJUDICE; and
IT IS FINALLY ORDERED that Plaintiff Blayne Williams' pendant state law claims
against the City of Austin or DISMISSED WITHOUT PREJUDICE.
SIGNED this the
/
Thay of March 2016.
SAM SPARKS
UNITED STATES DISTRICT JUDGE
695
summj
ord mns.frm
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