Normore v. Dall. Indep. Sch. Dist.

677 F.Supp.3d 494

Terry L. NORMORE, Plaintiff, v. DALLAS INDEPENDENT SCHOOL DISTRICT; Dwain Simmons,in His Individual and Official Capacity, Defendant.

Civil Action No. 3:18-CV-02506-E

United States District Court, N.D. Texas, Dallas Division

Signed June 9, 2023

Bryan Haynes, Scheef & Stone LLP, Sherman, TX, Christian Cowart, Creedon PLLC, Frisco, TX, Mandi M. Phillips, Klemchuk PLLC, Dallas, TX, for Plaintiff.

Kathryn E. Long, K. Adam Rothey, Keisha N. Crane, Van Khanh Thi Pham, Thompson & Horton LLP, Dallas, TX, Joshua D. Fuller, Bell Nunnally & Martin, Dallas, TX, Carlos G. Lopez, Thompson & Horton LLP, Houston, TX, for Defendant Dallas Independent School District.

MEMORANDUM OPINION AND ORDER

ADA BROWN, UNITED STATES DISTRICT JUDGE

Before the Court is Defendant Dallas Independent School District (DISD)'s motion for summary judgment, which seeks summary judgment on all of Plaintiff Terry Normore's remaining claims. (ECF Nos. 121, 122). The Parties have further filed motions to strike the other Party's respective summary judgment evidence. (ECF Nos. 145, 158). Last, the Court previously deferred ruling on Normore's motion for partial summary judgment on DISD's affirmative defenses, so the Court address that motion, hereunder. (ECF Nos. 125, 126). Having carefully considered the motions; the Parties' briefing; appendices; and the applicable law, for reasons that follow, the Court grants DISD's motion for summary judgment and denies the other three motions.

I. BACKGROUND

A. Normore's Work as Assistant Athletic Coordinator in 2016

From August 2007 to May 2017, Normore worked at L.G. Pinkston High School (Pinkston) as an English teacher. (ECF No. 114-1 at 2, 4-5; ECF No. 123-13 at 4, 6-7, 13).¹ Until the 2016-2017 school year, Normore also held duties at Pinkston as (i) an assistant athletic coordinator (AAC)² and (ii) as the girls' basketball coach. (ECF No. 123-11 at 4; ECF No. 123-13 at 4). In 2016, Derwin Dukes—who served as Pinkston's athletic coordinator—oversaw Normore's coaching work. (ECF No. 123-11 at 5).³ At that time, the Principal of Pinkston was Dwain Simmons. (ECF No. 123-11 at 4-5).

On or about June 22, 2016, Normore and a group of the girls' basketball team players painted a classroom at Pinkston for the girls' basketball team's use as a "female weight room" (Painting Incident). (ECF No. 123-11 at 5; ECF No. 123-13 at 30-31). However, Normore did not receive authorization from Simmons to paint the room; Normore assumed she could paint the room without discussing authorization with Simmons. (ECF No. 123-10 at 138-39; ECF No. 123-11 at 5).⁴ On the morning of June 23, 2016, Simmons emailed Normore about the Painting Incident, stating it was "completely unauthorized." Normore was directed to stop painting, and Simmons indicated disciplinary actions would follow. On June 24, 2016, Simmons informed Normore that he was removing Normore from her position as AAC by phone call. (ECF No. 123-15 at 9-10; ECF No. 123-13 at 31). On July 19, 2016, Simmons emailed Normore the following:

Per our conversation earlier this summer in June, you told me Coach Dukes knew of you painting room 113 and that Assistant Principal Ms. Reed gave you permission to have the room. After a campus level inquiry both Coach Dukes and Ms. Reed denied those points; both are submitting written statements.

My expectations, at bare minimum, is for staff to obtain permission from me before making any major/changes of this sort and remain forthright in all communications. More importantly using students to paint a classroom without electricity, without ventilation, and without authorization from your building Principal or Athletics Coordinator are poor decisions - especially from an Assistant Coordinator and an accomplished veteran educator of your statue. That decision put students in a potentially dangerous and harmful situation.

In lieu of these evidence and findings, effective the 2016-2017 school year you will no longer serve as the Assistant Athletic Administrator/ Coordinator for Pinkston High School as discussed in our phone conversation in June.

(ECF No. 123-15 at 227). Thereafter, Normore engaged three processes to address her concerns with the termination of her AAC duties.

First, on July 29, 2016, Normore filed an internal grievance regarding Simmons's removal of her AAC position—which she later amended on August 8, 2016—through DISD's three-level grievance process (referred collectively as "Grievance").⁵ (ECF No. 123-11 at 5; ECF No. 123-1 at 137-38; ECF No. 114-2 at 87-88). The amended grievance details Normore's concerns regarding the athletics department from 2015 to her "removal from her [AAC] position" on July 19, 2016. (ECF No. 114-2 at 87-88). The amended grievance focuses on Normore's desire for a female weight room. (ECF No. 114-2 at 87-88). In explaining the removal from her AAC duties, the amended Grievance states:

Simmons' [sic] reprimand was to remove me from my position as the Female Coordinator. I asked him twice "So, you're removing me from my position because I painted a room? Do you think that the punishment fits the crime?"

. . . .

I believe he is trying to justify his unjust decision.

. . . .

I also believe that Mr. Simmons is retaliating because I asked for a female weight room and for my students and would not remove my assistant basketball coach and place a teacher in her place that he wanted, Ms. Parnell. Ms. Parnell has been given my Female Coordinator position. None of the male coaches have been held to same level of accountability as I have including Coach Dukes.

(ECF No. 114-2 at 87-88). On August 19, 2016, Normore waived her Level 1 Grievance Hearing—instead requesting for her Grievance to proceed directly to a Level II Grievance hearing before a DISD Hearing Officer. (ECF No. 123-1 at 139). After conducting a Level II Grievance Hearing, the DISD Hearing Officer denied the grievance on September 26, 2016—concluding, inter alia, "Grievant Normore has not shown that Principal Simmons failed to act in good faith or violated district policy or state or federal law." (ECF No. 123-1 at 143). Normore did not file a Level III grievance to appeal this decision nor otherwise request a hearing before a DISD board subcommittee. (ECF No. 123-1 at 11).

Second, in August 2016, Normore initiated a personnel complaint under DISD Board policy⁶ to the District's Equal Employment Opportunity Compliance Manager (Personnel Complaint); her complaint was referred to the District's Professional Standards Office (PSO) for investigation. (ECF No. 123-1 at 12; ECF No. 123-1 at 145-47). Normore completed a corresponding questionnaire in which she alleged that Simmons discriminated against her on the basis of "sex, age and retaliation." (ECF No. 123-1 at 12; ECF No. 123-1 at 145-47). The questionnaire included the following question and response from Normore:

State each and every instance of complained-of conduct for each person that you allege discriminated against you. Include each and every reference that the person made to your discriminatory characteristic (sex, race, religion, disability, etc.) including dates, times, and witnesses. Please list every circumstance that shows that the adverse action you suffered (termination etc.) is based on one of the protected categories.

Mr. Simmons removed me from the Assistant Athletic Coordinator position this summer. I spoke with him on the phone June 24, 2016 and he sent me a written statement via email July 2016.

(ECF No. 123-1 at 147).⁷ PSO investigator Christine Mack completed a report for Normore's Personnel Complaint. (ECF No. 123-1 at 148-65). Mack's report states:

The investigation does not support that age, gender or retaliation were factors in Simmons removing Normore from the Assistant Athletics Coordinator position. No policy violations were sustained.

(ECF No. 12-1 at 149).

Third, on December 16, 2016, Normore filed a complaint with the United States Department of Education's Office for Civil Rights (OCR Complaint). (ECF No. 123-13 at 85-115). Normore's OCR Complaint checks and provides information relating to discrimination based on sex, age, and retaliation. (ECF No. 123-13 at 86-87).⁸ On March 29, 2017, the Department of Education's Office for Civil Rights referred the OCR Complaint to the Equal Employment Opportunity Commission (EEOC). (ECF No. 123-13 at 117-18). Normore's response to the corresponding EEOC Intake Questionnaire from April 21, 2017, alleged that Dallas ISD discriminated and retaliated against her. (ECF No. 123-13 at 124-28).

B. Normore's Termination from Teaching

On May 18, 2017, Pinkston held an athletics banquet at a bowling alley; about 150 students, parents, volunteers, coaches, school administrators attended this athletics banquet. (ECF No. 123-11 at 5). Normore bowled in the company of several students, coaches, and parents. (ECF No. 123-11 at 6). While bowling, Normore fell on the bowling lane; people on the same lane assisted her; and the group reacted by laughing in a playful manner, along with Normore. (ECF No. 123-11 at 6). Soon after the fall, Dukes joined Normore's group. (ECF No. 123-11 at 6). Dukes challenged Normore to bowl while he stood next to Normore and looked to the bowling lane. (ECF No. 123-11 at 6). Dukes testified that Normore then punched him on the chest, which caused him to take a step back (Punching Incident). (ECF No. 123-10 at 25). Dukes testified he felt pain and was confused by the incident; afterward, Normore and Dukes sat next to one-another in silence. (ECF No. 123-10 at 25).

After the banquet, Dukes reported the Punching Incident to Simmons and contacted Campus Officer Sepulveda—wanting to press criminal charges against Normore. (ECF No. 123-11 at 7). Simmons began a formal investigation regarding the Punching Incident: Simmons gathered facts, interviewed witnesses, collected written statements, wrote memorandums, and wrote an investigation report. (ECF No. 123-11 at 8). On June 2, 2017, Simmons submitted a recommendation...