Allison v. City of Fort Worth, Texas

60 F.Supp.2d 589

Ronny C. ALLISON, et al., Plaintiff, v. CITY OF FORT WORTH, TEXAS, Defendant.

No. 4:98-CV-646-A.

United States District Court, N.D. Texas, Fort Worth Division.

July 22, 1999.

COPYRIGHT MATERIAL OMITTED

Barry Stuart Zisman, Attorney at Law, Mark Douglas Perdue, Attorney at Law, Jeffrey C Poster, Attorney at Law, Zisman Law Office, Dallas, TX, for plaintiffs.

Gary L. Ingram, Attorney at Law, Jackson Walker, Fort Worth, TX, for defendant.

MEMORANDUM OPINION and ORDER

McBRYDE, District Judge.

Came on for consideration the motion of defendant, City of Fort Worth, Texas, for summary judgment. The court, having considered the motion, the response of plaintiffs, Ronnie C. Allison ("Allison"), Paul H. Rider ("Rider"), Dennis J. Wynne ("Wynne"), Todd Ikens ("Ikens"), Robert Finley ("Finley"), and Mary Collins, as independent executrix of the Estate of Brian Collins ("Collins"), Deceased ("executrix"), the record, the summary judgment evidence, and applicable authorities, finds that the motion should be granted.

I. Plaintiffs' Claims

On July 29, 1998, plaintiffs filed their original complaint in this action.¹ On December 31, 1998, plaintiffs filed their first amended complaint, having first obtained leave to do so. See Dec. 29, 1998, order.

Plaintiffs allege: Defendant utilizes examinations to determine promotion eligibility. Firefighters who wish to be promoted take an examination and are placed on a promotion list according to their scores. The list remains in effect for one year. Plaintiffs are all Caucasian. In 1995, Allison, Rider, and Wynne took the examination and were placed on the list to be promoted to battalion chief. They were not promoted, because the list expired before positions became available. In 1996, the top three positions on the list for promotion to battalion chief were occupied by minority firefighters. Ten days before the list was due to expire, those candidates were promoted to newly created battalion chief positions so that they did not "die on the list." Defendant's city council considered the fact that minorities were positioned at the top of the list to offer a unique opportunity. In 1997, Ikens, Collins and Finley were positioned at the top of the list for promotion to captain. In 1996, "overages," that is, the creation of temporary positions in anticipation of upcoming retirements, were used to promote minority candidates to captain in order to prevent their names from dying on the list. Because of the use of overages in 1996, captain positions were not available in 1997 for Ikens, Collins, and Finley.

Plaintiffs allege that by discriminating against them on the basis of their race, defendant violated (1) the Equal Protection Clause of the Fourteenth Amendment, (2) Title VII, 42 U.S.C. §§ 2000e to 2000e-17, (3) the Equal Rights Amendment of the Texas Constitution, art. I, § 3, and (4) the Texas Commission on Human Rights Act ("TCHRA"), Texas Labor Code § 21.00. Plaintiffs seek the promotions they say they were denied, plus lost wages, punitive damages, attorneys' fees, and costs.

II. Grounds of the Motion

Defendant seeks judgment on each of plaintiffs' claims. Specifically, defendant asserts:

A. Plaintiffs cannot establish a prima facie case of discrimination, because they cannot demonstrate the existence of an allegedly discriminatory policy, practice, or custom of promoting minority race employees into overages.

B. Collins, Ikens, and Finley cannot establish a prima facie case of discrimination, because they were not eligible to be promoted to the rank of captain at the time the allegedly discriminatory promotions occurred.

C. Wynne, Allison, and Rider cannot establish a prima facie case of discrimination, because they were not eligible to be promoted to the position of battalion chief at the time the allegedly discriminatory promotions took place. And, Rider was, in fact, promoted and did not suffer an adverse employment action.

D. Plaintiffs cannot establish a prima facie case of discrimination in promotions, because they cannot show that they were treated in a disparate manner.

E. Plaintiffs cannot establish a prima facie case, because none of them had a vested right to demand creation of promotion vacancies and none suffered an ultimate adverse employment action as a result of the creation of additional positions into which minority employees were promoted.

F. Plaintiffs' claims under Title VII and the TCHRA are time-barred, because their administrative charges were not timely filed.

G. Finley, Ikens, and Collins failed to exhaust available administrative remedies by failing to timely file charges of discrimination and obtain right-to-sue letters prior to instituting this action.

H. Plaintiffs cannot establish a prima facie case of discrimination under the Texas and United States Constitutions, because they cannot demonstrate that they had a right to be promoted into overages or created positions.

I. Texas does not recognize a claim for money damages and attorneys' fees under Article I, § 3 of the Texas Constitution.

J. Plaintiffs' claims of discrimination and unequal treatment under the United States and Texas Constitutions are barred, at least in part, by the two-year statute of limitations.

K. Wynne's claims under Title VII and the TCHRA are time-barred, because he failed to timely institute this action after receiving his notice of right to sue.

III. Undisputed Facts

The facts pertinent to the motion for summary judgment are complex and lengthy. Accordingly, they are best discussed in connection with the pertinent legal arguments.

The court notes that each side has filed a motion to strike summary judgment materials submitted by the other. The court is not inclined to rule specifically on the motions, but, instead, will give the summary judgment evidence whatever weight, if any, it may deserve.

IV. Applicable Summary Judgment Principles

A party is entitled to summary judgment on all or any part of a claim as to which there is no genuine issue of material fact and as to which the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c). Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The moving party has the initial burden of showing that there is no genuine issue of material fact. Anderson, 477 U.S. at 256, 106 S.Ct. 2505. The movant may discharge this burden by pointing out the absence of evidence to support one or more essential elements of the non-moving party's claim "since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex Corp. v. Catrett, 477 U.S. 317, 323-25, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the moving party has carried its burden under Rule 56(c), the non-moving party must do more than merely show that there is some meta-physical doubt as to the material facts. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The party opposing the motion may not rest on mere allegations or denials of pleading, but must set forth specific facts showing a genuine issue for trial. Anderson, 477 U.S. at 248, 256, 106 S.Ct. 2505. To meet this burden, the nonmovant must "identify specific evidence in the record and articulate the `precise manner' in which that evidence support[s] [its] claim[s]." Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir.), cert. denied, 513 U.S. 871, 115 S.Ct. 195, 130 L.Ed.2d 127 (1994). An issue is material only if its resolution could affect the outcome of the action. Anderson, 477 U.S. at 248, 106 S.Ct. 2505. Unsupported allegations, conclusory in nature, are insufficient to defeat a proper motion for summary judgment. Simmons v. Lyons, 746 F.2d 265, 269 (5th Cir.1984).

The standard for granting a summary judgment is the same as the standard for a directed verdict. Celotex Corp., 477 U.S. at 323, 106 S.Ct. 2548. If the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial. Matsushita, 475 U.S. at 597, 106 S.Ct. 1348.

V. Establishing a Prima Facie Case

A. Title VII and TCHRA.

To establish a prima facie case of race discrimination in promotions, each plaintiff must show that he is a member of a protected class,² that he was qualified to be promoted and applied to be promoted to an available position, that despite his qualifications he was not selected, and that a minority race candidate with equal or lesser qualifications was selected for the position. Reno v. Metropolitan Transit Auth., 977 F.Supp. 812, 823 (S.D.Tex.1997). In a disparate treatment case, such as this one, plaintiffs bear the burden of proving intentional discrimination. Merrill v. Southern Methodist Univ., 806 F.2d 600, 605 (5th Cir.1986). Because the TCHRA is the state counterpart to Title VII, the same standards apply. Schroeder v. Texas Iron Works, Inc., 813 S.W.2d 483, 485 (Tex.1991); Farrington v. Sysco Food Servs., Inc., 865 S.W.2d 247, 251 (Tex. App. — Houston [1st Dist.] 1993, writ denied). Thus, if summary judgment is appropriate on the Title VII claims, it is also appropriate on the TCHRA claims. Patton v. United Parcel Serv., Inc., 910 F.Supp. 1250, 1262, 1270 (S.D.Tex.1995).

Defendant maintains that plaintiffs cannot establish a prima facie case of discrimination based on race. The court agrees. In particular, plaintiffs refer to a pattern and practice utilized by defendant to discriminate in promotions by making sure that minority candidates receive promotions when they are eligible, but not providing the same opportunities for white candidates. Yet each of the plaintiffs testified that he had never been discriminated against except for the specific incident about which he complains in this lawsuit and that he was not aware of any other instances of discrimination against white candidates for promotion. Plaintiffs further...