Johnson v. Texas Windstorm Insurance Association et al

Filing 37

REPORT AND RECOMMENDATIONS re 8 Motion for Summary Judgment,, filed by Texas Fair Plan Association, Texas Windstorm Insurance Association. Signed by Judge Andrew W. Austin. (td)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
ROOSEVELT JOHNSON
V.
TEXAS WINDSTORM INSURANCE
ASSOCIATION and TEXAS FAIR
PLAN ASSOCIATION

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A-14-CV-926-LY

REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
TO:

THE HONORABLE LEE YEAKEL
UNITED STATES DISTRICT JUDGE
Before the Court are: Defendants’ Motion for Summary Judgment (Dkt. No. 8); Plaintiff’s

Response (Dkt. No. 18); and Defendants’ Reply (Dkt. No. 19). The undersigned submits this Report
and Recommendation to the United States District Court pursuant to 28 U.S.C. § 636(b) and Rule
1(h) of Appendix C of the Local Court 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
This is an employment discrimination case. Plaintiff Roosevelt Johnson (“Johnson”), who

is African-American, alleges he was discriminated on the basis of his race when he was not
promoted on two occasions by his employers Texas Fair Plan Association (“TFPA”) and Texas
Windstorm Insurance Association (“TWIA”). He also alleges he was constructively discharged by
these lack of promotions. Johnson began working at TFPA and TWIA on October 18, 2008 as a
contractor. Dkt. No. 18, Ex. 1. On January 29, 2010, he was hired to work as a full-time Senior
Claims Adjuster for Defendants. Id. In December of 2010, Johnson applied for the position of
Catastrophe Manager. Id. He did not receive the position. Id. In December of 2011, Johnson
applied for a Litigation Manager position. Id. On March 5, 2012, Greg Resnick, a white male, was

named as the Acting Litigation Manager. Id. In early August of 2012, Resnick was named as
Litigation Manager. Id. Johnson resigned on August 9, 2012. Id.
II.

Summary Judgment Standard
When a party moves for summary judgment, the reviewing court shall grant the motion “if

the movant shows that there is no genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law.” FED. R. CIV. P. 56(a). A dispute about a material fact is genuine “if
the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). All reasonable doubts on questions of fact must
be resolved in favor of the party opposing summary judgment. See Evans v. City of Houston, 246
F.3d 344, 348 (5th Cir. 2001) (citation omitted).
III.

Analysis
Johnson asserts claims of race discrimination for failure to promote and constructive

discharge pursuant to the Texas Labor Code and 42 U.S.C. § 1981. Dkt 1-3. On his failure to
promote claims, he complains of not receiving both the Catastrophe Manager position, and the
Litigation Manager position. With regard to the constructive discharge allegation, he contends that
his inability to obtain the two promotions made it clear that he would never be promoted by the
Defendants, and was therefore forced to resign.
A.

Catastrophe Manager Position
Defendants move for summary judgment asserting that Johnson’s Texas Labor Code and

§ 1981 claims for failure to promote related to the Catastrophe Manager position are time barred.
Johnson fails to respond to these arguments.
A person claiming to be aggrieved by an unlawful employment practice must file a complaint
with the Texas Commission on Human Rights within 180 days after the date the alleged unlawful

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employment practice occurred. TEX. LAB. CODE § 21.202(a) (making it mandatory and jurisdictional
that claims under the Texas Labor Code be filed no later than 180 days after the alleged unlawful
employment practice). “A one-time employment event . . . is a discrete action that ‘constitutes a
separate actionable unlawful employment practice’ and therefore should place an employee on notice
that a cause of action has accrued.’ ” Sauceda v. Univ. of Texas at Brownsville, 958 F.Supp.2d 761,
770 (S.D. Tex. 2013) (citation omitted). The limitations period “begins when the employee is
informed of the allegedly discriminatory employment decision.” Specialty Retailers v. DeMoranville,
933 S.W.2d 490, 493 (Tex. 1996).
Johnson’s affidavit states that Jim Oliver told Johnson that he was not selected for the
Catastrophe Manager position. Dkt. 18, Ex. 1. Defendants offer summary judgment evidence that
Oliver left employment at TWIA in April of 2011. Dkt. No. 8, Ex. 2 at 2:20-13:14, 43:12-16.
Johnson does not dispute this evidence. Accordingly, the undisputed summary judgment evidence
demonstrates that Johnson was informed that he did not get the Catastrophe Manager position no
later than April of 2011. Johnson filed his EEOC discrimination charge on May 25, 2012. Dkt. No.
8, Ex. 7. This claim is therefore time-barred.
The claim brought pursuant to § 1981 is also time-barred. That statute prohibits employment
discrimination on the basis of race. Johnson v. Railway Express Agency, 421 U.S. 454, 459–60
(1975). Specifically, § 1981 provides that “[a]ll persons within the jurisdiction of the United States
shall have the same right . . . to make and enforce contracts . . . as is enjoyed by white citizens.” 42
U.S.C. § 1981(a). Section 1981 does not have a statute of limitations. Instead, federal courts
generally apply “the most appropriate or analogous state1 statute of limitations.” Jones v. R.R.

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Texas’s applicable and analogous statute of limitations—that for torts—is two years.
Fonteneaux v. Shell Oil Co., 289 Fed. Appx. 695, 699 (5th Cir. 2008), cert. denied, 555 U.S. 1171
(2009).
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Donnelley & Sons Company, 541 U.S. 369, 371 (2004). In 1990, Congress enacted a 4-year statute
of limitations for actions “made possible” by a federal statute enacted after December 1, 1990. Id.
at 382; 28 U.S.C. § 1658. In Jones, the Court held that this 4-year catchall applies when “the
plaintiff’s claim against the defendant was made possible by a post-1990 enactment.” 541 U.S. at
382. Failure to promote claims, like Johnson brings here, were cognizable under § 1981 under the
version of the statute predating December 1, 1990. A plaintiff could bring a failure to promote claim
if the “promotion [rose] to the level of an opportunity for a new and distinct relation between the
employee and the employer.” Patterson v. McLean Credit Union, 491 U.S. 164, 185 (1989),
superseded by statute on other grounds as stated in CBOCS West Inc. v. Humphries, 553 U.S. 442
(2008). “In deciding whether a change of position rises to the level of a new and distinct relation,
the court must compare the employee’s current duties, salary, and benefits with those incident to the
new position.” Police Ass'n of New Orleans v. City of New Orleans, 100 F.3d 1159, 1170–71 (5th
Cir. 1996). If the new position involves “substantial changes,” the failure to promote claim was
available under § 1981 prior to the 1991 amendments and Texas’s two-year prescriptive period
applies. Fonteneaux v. Shell Oil Co., 289 Fed. Appx. 695, 699 (5th Cir. 2008), cert. denied, 555
U.S. 1171 (2009).
Defendants have presented summary judgment evidence that establishes that the Catastrophe
Manager position involved “substantial changes” from the Senior Claims Examiner position,
including a greatly increased salary, supervising personnel, a different job classification, reporting
to a different supervisor, and greater management responsibility. Doc. No. 18, Ex. 2 at 66; Dkt. No.
8, Ex. 4. Because the two jobs are separate and distinct, the § 1981 claim Johnson is bringing was
available prior to the 1991 amendments, and the two year statute of limitations is applicable.
Fonteneaux, 289 Fed. Appx. at 699 (holding failure to promote claim under Section 1981 was

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subject to two year limitations period because the desired promotion was a separate job that included
supervisory responsibility); Smith v. Aaron's, Inc., 325 F.Supp.2d 716, 723 (E.D. La.2004) (applying
Louisiana’s one-year limitations period to a § 1981 failure to promote claim); Wells v. ABF Freight
System, Inc., 2013 WL 773446 (E.D. La. 2013). Johnson was notified he did not receive the
Catastrophe Manager position by April of 2011. He brought his § 1981 claim more than three years
later when he added it to this lawsuit on September 26, 2014. Dkt. 1-3. The § 1981 claim related
to the Catastrophe Management position is also time-barred.
B.

Litigation Manager Position
Johnson also contends that the Defendants’ failure to promote him into the Litigation

Manager position was the result of racial discrimination under the Texas Labor Code and § 1981.
The legal framework governing claims under both statutes is the same as for claims brought under
Title VII. See, e.g., Thompson v. City of Waco, Tex., 764 F.3d 500, 503 (5th Cir. 2014)
(discrimination claim brought under section 1981 is analyzed pursuant to Title VII framework);
Wallace v. Methodist Hosp. Sys., 271 F.3d 212, 219 n. 10 (5th Cir. 2001) (claims brought pursuant
to Chapter 21 of the Texas Labor Code are analyzed pursuant to Title VII framework). Accordingly,
the Court employs thewell-developed burden shifting framework dictated by McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973), and its progeny. See Davis v. Dallas Area Rapid Transit, 383
F.3d 309, 316 (5th Cir. 2004). First, Johnson must make out a prima facie case of discrimination.
If he does so, then the burden shifts to the employer to articulate a legitimate non-discriminatory
reason for the challenged action. If the employer does so, then the burden shifts back to the plaintiff
to demonstrate that the proffered reason for the action is a pretext, and the true reason for the action
was discriminatory. Davis, 383 F.3d at 317 (citations omitted).

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Defendants present five grounds for summary judgment on this claim: (1) Johnson cannot
make out a prima facie case of discrimination; (2) there is a nondiscriminatory reason for its decision
not to promote Johnson; (3) Johnson cannot produce evidence of pretext; (4) Johnson cannot
produce evidence of race discrimination; and (5) Johnson cannot establish that he suffered any
damages.
1.

Prima Facie Case

Defendants assert that Johnson cannot make out a prima facie case of race discrimination
because he cannot show he was qualified for the Litigation Manager position. In order to establish
a prima facie case of race discrimination for failure to promote, a plaintiff must prove: “(1) he was
within a protected class; (2) he was qualified for the position sought; (3) he was not promoted; and
(4) the position he sought was filled by someone outside the protected class.” Blow v. City of San
Antonio, Tex., 236 F.3d 293, 296 (5th Cir. 2001). There is no dispute Johnson is within a protected
class, was not promoted, and the position for which he applied was filled by someone outside the
protected class. At issue is whether he was qualified for the position. Defendants assert that
Johnson was not qualified for the position because the Litigation Manager position criteria included
a preference that the candidate graduate from a four year accredited college or university, and
Johnson did not graduate from college. See Dkt. No. 8, Ex. 3. Johnson responds that the criteria for
the position merely stated a preference that the candidate possess a four year degree and did not
require a four year degree. Johnson is correct on this point. A plaintiff need only demonstrate that
he met “objective promotion criteria at the prima facie stage of his case.” Medina v. Ramsey Steel
Co., 238 F.3d 674, 681 (5th Cir. 2001)). A preference is not a requirement.

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2.

Non-discriminatory Reason for Failure to Promote

Since Johnson has established a prima facie case, the burden shifts to the defendants “to
articulate some legitimate, nondiscriminatory reason for the employee’s rejection.” Texas Dept. of
Community Affairs v. Burdine, 450 U.S. 248, 259 (1981). Defendants have come forward with
evidence that Johnson was not selected for the Litigation Manager position because he was not the
most qualified applicant for the job. David Williams, the Vice President of Claims for TWIA and
TFPA, developed the job listing for the Litigation Manager and made the decision to hire Greg
Resnick instead of Johnson because he believed Resnick was more qualified, and because he did not
believe that Johnson’s skills and experience in certain areas (writing, supervising employees) were
sufficient to meet the needs of the position. Dkt. No. 8-5 at ¶¶ 6-8. Williams further states that
Resnick’s experience as a manager and his education surpassed Johnson’s. Id. at ¶ 8 (noting that
Resnick had a B.A. an MBA, and a law degree). This is sufficient evidence to discharge the
Defendants’ burden of demonstrating a legitimate, non-discriminatory reason for not selecting
Johnson for the position. See Price v. Fed. Express Corp., 283 F.3d 715, 721 (5th Cir. 2002)
(promoted candidate’s management experience, military training and ties to local law enforcement
served as legitimate, nondiscriminatory reasons for failure to promote plaintiff); Scott v. Univ. of
Miss., 148 F.3d 493, 505-07 (5th Cir. 1998) (plaintiff's lack of federal clerkship experience, inferior
legal writing experience, and lack of classroom teaching experience as legitimate, nondiscriminatory
reasons for failure to hire); Bennett v. Total Minatome Corp., 138 F.3d 1053, 1061 & n. 11 (5th Cir.
1998) (plaintiff’s inability to speak French, insufficient offshore experience, and lack of drilling
experience recognized as legitimate, nondiscriminatory reasons).
3.

Pretext

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This shifts the burden back to Johnson to demonstrate that these stated reasons are pretexts
and not the true reasons for the Defendants’ decision. To establish pretext, Johnson argues that he
was clearly the better qualified applicant for the Litigation Manager position. Dkt. No. 18 at p. 11.
When a plaintiff relies on comparative qualifications to establish an inference of pretext, the
“disparities in qualifications must be 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.” Bright v. GB Bioscience, Inc., 305 F. App’x 197, 205 n. 8 (5th Cir. 2008); see
also EEOC v. La. Office of Cmty. Servs., 47 F.3d 1438, 1444 (5th Cir. 1995) (“A fact finder can infer
pretext if it finds that the employee was ‘clearly better qualified’ (as opposed to merely better or as
qualified) than the employees who are selected.”). This is a high bar, and meeting it requires more
than mere speculation. Celestine v. Petroleos de Venezuella SA, 266 F.3d 343, 347 (5th Cir. 2001).
Johnson argues that he was clearly better qualified for the Litigation Manager position than
Resnick. See Dkt. No. 18 at 9. Johnson asserts that the primary duty of the Litigation Manager
position was to review files in litigation and to assist the legal department in determining the most
favorable settlement value for the employer. He asserts that he possessed this skill while Resnick
did not and that he was a better representative at mediations than Resnick. Johnson points to his
experience as a field adjuster and his record of success mediating and settling claims as evidence that
he was the more qualified applicant. Dkt. No. 18, Exs.1 & 3.
In his declaration explaining his decision to hire Resnick, Williams testified that he
developed the requirements for the Litigation Manager role, and the key responsibilities for the
position were:
•

assisting the Vice President of claims and corporate legal with litigation management
function;
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•

directly supervising supervisors and examiners;

•

identifying and escalating emerging issues to management with recommendations;

•

evaluating litigated claim files with counsel to determine litigation strategy;

•

making presentations at claims conferences and mediations;

•

negotiating solutions with favorable outcomes; and

•

tracking litigated and represented claims for the organization.

Dkt. No. 8-3 at ¶ 3. As noted, the preferred education for an applicant was a diploma from a
four-year accredited college or university. Williams testified that he was seeking a person with a
high level of expertise in claims management, good written and communication skills, ten-plus years
proven industry experience in progressively responsible roles, and five years claims management
experience. Id. In comparing Johnson’s qualifications with those of Resnick, the candidate selected
for the position, Williams testified that:
Mr. Johnson did not have sufficient claims management experience. Furthermore,
Mr. Johnson did not have any management or supervisory responsibility in his role
as a Senior Claims Examiner and did not have any management or supervisory
experience at TWIA or TFPA. Mr. Johnson did a very good job with settling
litigation matters. However, Mr. Johnson struggled with his communication skills,
especially written communication, and did not demonstrate that he had the necessary
management or people skills for the litigation management role.
Greg Resnick, who was selected as the Acting Manager-Claims Litigation, TWIA
& TFPA, had substantially more relevant experience at TWIA than Mr. Johnson. Mr.
Resnick had worked at TWIA longer than Mr. Johnson, had more management
experience, and more education. For example, Mr. Resnick had been working for
TWIA and TFPA since 2005, had been a Senior Claims Examiner who handled
mediations on behalf of TFPA, and became a Senior Project Manager with direct
reports that he was managing in the TFPA claims department. Mr. Resnick’s prior
supervisory experience included a role as a catastrophe claims supervisor for Century
National Insurance Company from 2002 – 2005, immediately prior to his coming to
work for TWIA and TFPA. In addition, Mr. Resnick had more education, including
a bachelor’s degree, a Masters in Business Administration, and a law degree.
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Id. at ¶¶6-8.
Contrary to Johnson’s arguments, this evidence shows that the Litigation Manager position
required management and supervisory skills, skills that Johnson lacked and Resnick possessed.
Additionally, Resnick was more educated than Johnson and a four-year degree was a stated
preference for the candidate. Defendants have presented summary judgment evidence that Johnson’s
communication skills were lacking and that Johnson had acknowledged this. Dkt. Nos. 8-7 to 8-10.
Moreover, Johnson had not managed people for over twenty years and he had not had any
supervisory or management responsibilities while working for Defendants. Dkt. No. 8-5. Resnick
was promoted from a position where he was already managing Defendants’ claims personnel.
Additionally, Resnick had worked at TWIA longer that Johnson.2
This evidence does not come close to demonstrating that Johnson was “clearly better
qualified” for the Litigation Manager than Resnick. It is undisputed that Resnick possessed more
management experience, had worked at TWIA longer, and possessed significantly more education
that Johnson. Further, because the position involved managing and tracking litigation, Resnick’s law
degree also placed him ahead of Johnson. Johnson has offered no evidence to counter Defendants’
claim that supervisory experience was important for the position to which Resnick was promoted.
Overall, the evidence actually proves the opposite of what Johnson contends—it would appear that
Resnick was clearly the more qualified candidate among the two. Under Title VII, an employer is
free to choose among equally qualified candidates as long as the employer does not apply unlawful
criteria. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 259. “One can hardly find

2

Johnson became a full-time permanent employee in 2010. Dkt. No. 18, Ex. 1. Resnick had
worked for Defendants since 2005. Dkt No. 8-5.
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mendacity by the employer when ‘its judgments on qualifications are somewhere within the realm
of reason.’” Churchill v. Tex. Dep't of Crim. Justice, 539 Fed. Appx. 15, 321 (5th Cir. 2013)
(citation omitted). The evidence fails to raise a material fact on this point. See Martinez v. Tex.
Workforce Comm'n, 775 F.3d 685, 688 (5th Cir. 2014). Johnson has failed to present any evidence
of pretext or race as the real reason for the Defendants’ decision not to hire Johnson.
C.

Constructive Discharge
Finally, Johnson contends that he was constructively discharged by Defendants because “it

became increasingly clear that Mr. Johnson was not going to be considered for any promotions at
TWIA/TFPA, and was thus being constructively discharged from his position with Defendants.”
(Dkt. 1-3 at ¶ 28). This claim also fails.
“A constructive discharge occurs when the employer makes working conditions so intolerable
that a reasonable employee would feel compelled to resign.” Hunt v. Rapides Healthcare System,
LLC, 277 F.3d 757, 771 (5th Cir. 2001). Factors courts consider when determining whether an
employee has been constructively discharged include “(1) demotion; (2) reduction in salary;
(3) reduction in job responsibilities; (4) reassignment to menial or degrading work; (5) badgering,
harassment, or humiliation by the employer calculated to encourage the employee’s resignation; or
(6) offers of early retirement that would make the employee worse off whether the offer was
accepted or not.” Id. at 771–72 (“The question is not whether [the employee] felt compelled to
resign, but whether a reasonable employee in her situation would have felt so compelled.”). Johnson
presents no evidence of any of these factors; instead, he makes the rather audacious claim that he was
constructively discharged—that is, his job conditions were made so intolerable that he was forced
to resign—because Defendants did not promote him (despite the fact that he was given a raise in

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April 2012 and was told by Williams that “he was very well thought of by the leadership and that
we very much appreciated his efforts in resolving the TFPA Hurricane Ike litigation.” Dkt. No. 8-5;
8-2 at 153:1-155:22; 218:16-219:12).
A failure to promote cannot by itself demonstrate a constructive discharge. Boze v.
Branstetter, 912 F.2d 801, 805 (5th Cir. 1990); see also Brown v. Kinney Shoe Corp., 237 F.3d 556,
566 (5th Cir. 2001). The sole case Johnson relies on for this argument, Jurgens v. E.E.O.C., 903
F.2d 386 (5th Cir. 1990), does not support his position. Instead, it stands for the proposition that
where an employer discriminatorily denies a promotion to an employee, that, without more, cannot
be reasonably construed as a career-ending action sufficient to comprise a constructive discharge:
“As a matter of law such a remote possibility would not make a reasonable employee feel compelled
to resign.” Id. at 392. See also Junior v. Texaco, Inc., 688 F.2d 377, 380 (5th Cir. 1982)); Calcote
v. Texas Educ. Found., 578 F.2d 95, 96-97 (5th Cir. 1978) (dimmed future job prospects based upon
the employer’s past discrimination in promotions are not alone enough to support a finding of
constructive discharge).
Finally, the summary judgment evidence demonstrates not only that the conditions at TWIA
and TFPA were not so intolerable that they caused Johnson to resign, but also supports the
conclusion that Johnson left Defendants’ employ for greener pastures. As early as February of 2012,
Johnson was engaged in discussions about starting an independent adjusting company. Dkt. 18, Ex.
2 at 245, 180, 187-189. Though Johnson claims that he was forced to resign from his position with
Defendants in August 2012, when he figured out that he had no future there, he had started planning
his exit months earlier, and he commenced work as an independent adjuster at the company he

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founded and owned on September 1, 2012. Id. at 102. The undisputed evidence demonstrates that
Johnson was not constructively discharged.3
III. RECOMMENDATION
Based upon the foregoing, the undersigned Magistrate Judge RECOMMENDS that the
Court GRANT Defendants’ Motion for Summary Judgment (Dkt. No. 8) and enter judgment that
Plaintiff take nothing on his claims against Defendants.
IV. 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
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, 106 S. Ct. 466,
472-74 (1985); Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en
banc).

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Because Defendants are entitled to summary judgment on liability as to all of Johnson’s
claims, the Court will not address Defendants’ argument regarding the lack of evidence of damage.
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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 21st day of May, 2015.

_____________________________________
ANDREW W. AUSTIN
UNITED STATES MAGISTRATE JUDGE

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