Reno v. Metropolitan Transit Authority, Civil Action No. H-96-141.

977 F.Supp. 812

Brenda "Penny" RENO v. METROPOLITAN TRANSIT AUTHORITY, et al.

Civil Action No. H-96-141.

United States District Court, S.D. Texas, Houston Division.

August 12, 1997.

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Stephen P. Glover, Groves and Glover, Houston, TX, for Plaintiff.

Brenda "Penny" Reno, Houston, TX, pro se.

A. Martin Wickliff, Jr., Wickliff and Hall, Houston, TX, Paula Johnson Alexander, Metro Transit Authority, Legal Dept., Houston, TX, for Defendants.

AMENDED ORDER

GILMORE, District Judge.

Pending before the Court is Defendant's Motion to Summary Judgment (Instrument No. 39). Having reviewed the submissions of the parties and the applicable law, this Court has determined that Defendant's Motion should be GRANTED.

I. Background

Plaintiff, Brenda "Penny" Reno ("Reno"), a fifty-seven year old white female, brings this action against her employer, Defendant Metropolitan Transit Authority ("Metro"), claiming that she was discriminated against in violation of 42 U.S.C. § 2000e et seq. ("Title VII") and deprived of her First Amendment right of free association in violation of 42 U.S.C. § 1983. In August of 1988, Reno began employment with Metro as a word processor in the Procurement Department. Approximately one year later, Reno was promoted to the position of Senior Word Processing Specialist under the supervision of Carlos Moorer ("Moorer").

In the fall of 1991, Reno applied for promotion to the position of Assistant Buyer in the Administration/Contracts Department. Carl Dyer ("Dyer"), manager of the department, rejected her application and instead hired Margot Cruz ("Cruz"), a Hispanic woman who was, at that time, under forty years old. In the spring of 1992, Reno applied for another Assistant Buyer position. However, she was not chosen for this position either. Department manager Rick Haydel ("Haydel") instead selected Ninfa Muench ("Muench"), a Hispanic female in her late twenties, to fill the vacancy. Finally, in the fall of 1993, Reno applied for the position of Inventory Control Technician in the Materials Management Department. Reno was again rejected and the job was awarded by department manager, Bud Nahay ("Nahay"), to Steve Marshall ("Marshall"), an African-American male also in his late twenties.

Reno filed an internal grievance with Metro's Affirmative Action Department in March of 1994. Reno contended that her failure to obtain a promotion was not based on her lack of qualifications but rather on unlawful criteria such as age, race and gender. The Department conducted an investigation and determined that Reno was not denied, for discriminatory reasons, any of the three promotions she requested. On April 18, 1994, Reno filed a Charge of Discrimination with the Equal Employment Opportunity Commission ("EEOC"), claiming age and reverse-race discrimination with respect to the Assistant Buyer positions and age, sex, and reverse-race discrimination with respect to the Inventory Control Technician position. She also claimed that her immediate supervisor, Moorer, retaliated against her for filing the 1994 internal grievance. On October 16, 1995, the EEOC issued a determination and a right to sue notice. Reno filed this action on January 16, 1996, asserting claims under Title VII for age discrimination, race discrimination and retaliation. On April 22, 1996, Reno amended her complaint, adding causes of action under Title VII for gender discrimination and sexual harassment and a claim under § 1983 for deprivation of her First Amendment right to free association. Reno also added Moorer and Vince Raymond ("Raymond"), the department managers' supervisor, as defendants. A second amended complaint was filed on July 15, 1996, developing with greater factual specificity the basis for each of Reno's claims.

On April 15, 1997, Metro filed a motion for summary judgment, arguing that it is entitled to judgment as a matter of law for the following reasons: (1) Reno's claims for gender discrimination and sexual harassment were not filed within ninety days after her receipt of the right to sue notice and are thus time barred; (2) Reno did not properly exhaust her administrative remedies for her sexual harassment claim as no such claim was presented to the EEOC in Reno's 1994 complaint; (3) Reno cannot premise her Title VII claims on the 1991 or 1992 promotion decisions as she failed to file a charge of discrimination with the EEOC within 300 days after either event's occurrence; (4) Reno cannot establish a prima facie case of age, race or gender discrimination with regard to Metro's decision not to hire her for the Inventory Control Technician position because she was not qualified for the job; (5) Reno cannot establish a prima facie case of retaliation because she will be unable to prove Metro's alleged retaliatory actions constituted an "adverse employment action" nor can she prove a causal link between her filing an internal grievance and Metro's purported retaliatory action; and (6) Reno's § 1983 claim must fail because there is no evidence that Metro violated Reno's First Amendment rights. Further, Metro argues that even if Reno were able to establish such a violation, Moorer and Raymond are entitled to qualified immunity. Metro also claims that Reno has not proven that the alleged unlawful conduct was pursuant to official policy as required to hold Metro liable.

Conversely, Reno contends that her sexual harassment and gender discrimination claims are not time-barred under Rule 15(c) of the Federal Rules of Civil Procedure, which permits an amendment adding claims that arose out of the conduct set forth in an original complaint to relate back to the date the original pleading was filed, so as not to be untimely. Reno further argues that she did in fact exhaust her administrative remedies for her sexual harassment claim and that recovery is permissible for Metro's refusal to promote her in 1991 and 1992 because such decisions were a part of a continuing course of discriminatory conduct. Finally, Reno argues that fact issues clearly exist as to the merits of each of the claims asserted herein, thereby precluding summary judgment.

II. Standard of Review

Summary judgment is appropriate if no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56. A fact is "material" if its resolution in favor of one party might affect the outcome of the suit under governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). An issue is "genuine" if the evidence is sufficient for a reasonable jury to return a verdict for the nonmoving party. Anderson, 477 U.S. at 248-49, 106 S.Ct. at 2510. If the evidence rebutting the motion for summary judgment is only colorable or not significantly probative, summary judgment should be granted. Anderson, 477 U.S. at 249, 106 S.Ct. at 2511; see Lewis v. Glendel Drilling Co., 898 F.2d 1083, 1088 (5th Cir.1990). The summary judgment procedure, therefore, "enables a party `who believes there is no genuine issue as to a specific fact essential to the other side's case to demand at least one sworn averment of that [specific] fact before the lengthy process of litigation continues.'" Microsoft Corp. v. CMOS Techs. Inc., 872 F.Supp. 1329, 1334 (D.N.J.1994) (quoting Lujan v. National Wildlife Federation, 497 U.S. 871, 888-89, 110 S.Ct. 3177, 3188-89, 111 L.Ed.2d 695 (1990)).

Under Rule 56(c), the moving party bears the initial burden of informing the district court of the basis for its belief that there is an absence of a genuine issue for trial, and for identifying those portions of the record that demonstrate such absence. Matsushita Elec. Ind. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 1355-56, 89 L.Ed.2d 538 (1986); Leonard v. Dixie Well Serv. & Supply, Inc., 828 F.2d 291, 294 (5th Cir.1987).

Where the moving party has met its Rule 56(c) burden, the nonmovant "must do more than simply show that there is some metaphysical doubt as to the material facts ... [T]he nonmoving party must come forward with `specific facts showing that there is a genuine issue for trial.'" Matsushita, 475 U.S. at 586-87, 106 S.Ct. at 1356 (quoting FED. R. CIV. P. 56(e)) (emphasis in original); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986); Leonard, 828 F.2d at 294. To sustain the burden, the nonmoving party must produce evidence admissible at trial. Anderson, 477 U.S. at 255, 106 S.Ct. at 2514; Thomas v. Price, 975 F.2d 231, 235 (5th Cir.1992) ("To avoid a summary judgment, the nonmoving party must adduce admissible evidence which creates a fact issue...."). "The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonable find for the plaintiff." Anderson, 477 U.S. at 252, 106 S.Ct. at 2512.

Summary judgment evidence in discriminatory treatment cases brought under Title VII or the ADEA is examined under the three-step burden-shifting analysis set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See also Bodenheimer v. PPG Indus., Inc., 5 F.3d 955, 957 (5th Cir.1993) (holding that McDonnell Douglas burden-shifting approach applies to claims brought under the ADEA). First, a plaintiff must establish a prima facie case of alleged wrong doing by a preponderance of the evidence. Nowlin v. Resolution Trust Corp., 33 F.3d 498, 507 (5th Cir.1994). If that requirement is met and a prima facie case is established, the burden then shifts to the defendant to articulate legitimate, non-discriminatory reasons for the discharge. Id. To meet that burden, the defendant must clearly set forth through admissible evidence reasons that would support a finding that unlawful discrimination was not the basis for the employment action. St. Mary's Honor Center v. Hicks,...