Taylor v. Tex. S. Univ.

MICHELE TAYLOR, Plaintiff, v. TEXAS SOUTHERN UNIVERSITY, Defendant.

CIVIL ACTION NO. H-17-1522

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION

ENTERED: December 27, 2018

December 26, 2018

MEMORANDUM AND RECOMMENDATION GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

Pending in this case that has been referred to the Magistrate Judge is Defendant's Motion for Summary Judgment (Document No. 21). Having considered the motion, the response in opposition, the summary judgment evidence and objections thereto, Defendant's Reply, the applicable law, and the prior lawsuit between Plaintiff and Defendant, Civil Action No. H-13-2708, the Magistrate Judge RECOMMENDS, for the reasons set forth below, that Defendant's Motion for Summary Judgment be GRANTED.

I. Background and Procedural History

Plaintiff Michelle Taylor ("Taylor"), an African American female and a long-time employee of Defendant Texas Southern University ("TSU"), filed this lawsuit in May 2017, alleging that she was discriminated and retaliated against following the completion of a prior unsuccessful employment discrimination lawsuit against TSU. In this case, Taylor alleges that:

28. Shortly after the trial in April 2015, [she] met with Dr. James Ward (then Provost) who promised he would request a raise for [her]. During that meeting, Ward commented negatively about the aforementioned trial implying [she] should not have brought it. To date, that request for Plaintiff has not been made.

29. In early September of 2015 Plaintiff was passed over for the position of associate dean of the Graduate School. Plaintiff learned after the position was filled that it was given to a non-black male.

30. Plaintiff at all times relevant hereto was qualified for the position and performed the duties of the associate dean for many years. In retaliation, Plaintiff was not given the opportunity to apply for the position.

31. Since the time of the trial Plaintiff's job duties have been reduced in retaliation.

32. These acts of retaliation are due to Plaintiff's complaints and lawsuit asserting unequal pay and unfair treatment because of her gender.

33. Dean Maddox (white male) promoted a non-black male to the associate dean position in an increased effort to force Plaintiff into retirement or out of the graduate school in retaliation due to her complaints about his wrongful acts in the previous Charge and trial asserting discrimination.

Complaint (Document No. 1) at 6. TSU has moved for summary judgment, arguing that Taylor has not and cannot establish a prima facie case of discrimination because she was not qualified for the position of Associate Dean about which she complains. As for the retaliation claims, TSU again argues that Taylor cannot base her retaliation claim on being passed over for the position of Associate Dean because she was not qualified for that position. TSU also argues that there is no evidence of any retaliatory motive associated with its selection for the Associate Dean position or its reduction in Taylor's job duties.

II. Summary Judgment Standard

Rule 56(a) provides that "[t]he court shall grant summary judgment if the movant shows that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a). The moving party must initially "demonstrate the absence ofa genuine issue of material fact." Celotex Corp. v. Catrett, 106 S. Ct. 2548, 2553 (1986). Once the moving party meets its burden, the burden shifts to the nonmovant, "who must, by submitting or referring to evidence, set out specific facts showing that a genuine issue exists" and that summary judgment should not be granted. Norwegian Bulk Transport A/S v. International Marine Terminals Partnership, 520 F.3d 409, 412 (5^th Cir. 2008); see also Morris v. Covan World Wide Moving, Inc., 144 F.3d 377, 380 (5th Cir. 1998).¹ A party opposing a properly supported motion for summary judgment may not rest upon mere allegations or denials in a pleading, and unsubstantiated assertions that a fact issue exists will not suffice. Celotex, 106 S. Ct. at 2548. Instead, "the nonmoving party must set forth specific facts showing the existence of a 'genuine' issue concerning every essential component of its case." Morris, 144 F.3d at 380.

In considering a motion for summary judgment, all reasonable inferences to be drawn from both the evidence and undisputed facts are to be viewed in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 106 S. Ct. 1348, 1356 (1986). "If the record, viewed in this light, could not lead a rational trier of fact to find" for the nonmovant, then summary judgment is proper. Kelley v. Price- Macemon, Inc., 992 F.2d 1408, 1413 (5th Cir. 1993) (citing Matsushita, 106 S. Ct. at 1351). On the other hand, if "the factfinder could reasonably find in [the nonmovant's] favor, then summary judgment is improper." Id. Even if the standards of Rule 56 are met, a court has discretion to deny a motion for summary judgment if it believes that "the better course would be to proceed to a full trial." Anderson, 106 S. Ct. at 2513.

III. Evidentiary Objections

Filed alongside her response to TSU's Motion for Summary Judgment are "Plaintiff's Objections to Defendant's Motion for Summary Judgment Evidence" (Document No. 25), in which Taylor objects to the admission and consideration of: (1) her performance evaluations from 2011-2017, which are inadmissible hearsay and lack authentication; (2) statements in the Declaration of Gregory Maddox that are hearsay; and (3) an October 2015 email that is hearsay and not properly authenticated. For the reasons set forth in TSU's response (Document No. 31), Taylor's objections are all OVERRULED. The performance evaluations are admissible as business records, FED. R. EVID. 803(6), over which Gregory Maddox is the custodian of records, as set forth in his Declaration. The complained of statements in Gregory Maddox's Declaration are based on his personal knowledge and/or are not hearsay under FED. R. EVID. 801(d)(2)(A). Finally, the October 2015, email is not hearsay under FED. R. EVID. 801(d)(2)(A).

IV. Discussion

Taylor has asserted in her Complaint claims of race and sex discrimination, and claims of retaliation. In her response to TSU's Motion for Summary Judgment, however, Taylor focuses almost exclusively on her retaliation claim(s), which she states are based on: "(1) the denial of the associate dean position despite being qualified for the position; (2) the denial of performance evaluations and; (3) denial of a raise or increased compensation when others were given the same." Response (Document No. 26-1) at 1.²

A. Discrimination Claims

Title VII prohibits an employer from discharging or otherwise discriminating against any individual because of such individual's race, color, religion, sex, or national origin, 42 U.S.C. § 2000e-2(a)(1). Actionable employment discrimination under Title VII can be based on disparate treatment, disparate impact, and/or a hostile work environment. Barnes v. McHugh, Civil Action No. 12-2491, 2013 WL 3561679 *11 (E.D. Tex. July 11, 2013) ("Courts have recognized several types of Title VII and ADEA claims. A plaintiff can assert "status-based" Title VII claims under 42 U.S.C.A. § 2000e-2(a) and (k), "retaliation" claims under 42 U.S.C .A. § 2000e-3, and "hostile work environment" claims, both for status-based discrimination and retaliation. Title VII status-based discrimination claims are divided into two categories: "disparate treatment" claims pursuant to § 2000e-2(a)(1), and "disparate impact" claims pursuant to 2000e-2(k)"). At issue in this case is disparate treatment discrimination.

For discrimination based on disparate treatment, a plaintiff must either offer direct evidence of discrimination or utilize the indirect method of proof set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). See Taylor v. Principal Fin. Group, Inc., 93 F.3d 155, 162 (5thCir.), cert. denied, 519 U.S. 1029 (1996); Daigle v. Liberty Life Ins. Co., 70 F.3d 394, 396 (5th Cir. 1995).

"Direct evidence of discrimination is evidence which, if believed, would prove the existence of a fact (i.e., unlawful discrimination) without any inferences or presumptions." Bodenheimer v. PPG Indus. Inc., 5 F.3d 955, 958 (5th Cir. 1993). For a statement to suffice as direct evidence of discrimination, the statement must directly suggest the existence of bias and must not be subject to interpretation as anything other than a reflection of bias. See Mooney v. Aramco Svcs. Co., 54 F.3d 1207, 1217 (5th Cir. 1995) (citing Davis v. Chevron U.S.A. Inc., 14 F.3d 1082, 1085 (5th Cir. 1994)); see also Maestas v. Apple, Inc., 546 F. App'x 422, 427-28 (5^th Cir. 2013) ("A comment demonstrates an employer's discriminatory intent if it is 'direct and unambiguous, allowing a reasonable jury to conclude without any inferences or presumptions that age was an impermissible factor in the decision to terminate the employee.'") (quoting Moss v. BMC Software, Inc., 610 F.3d 917, 929 (5^th Cir. 2010)).

Under the indirect method of proof set forth in McDonnell Douglas, a plaintiff must first establish a prima facie case of discrimination. A prima facie case of disparate treatment discrimination under Title VII requires proof that the plaintiff (1) is a member of a protected class; (2) was qualified for the position; (3) suffered an adverse employment action; and (4) was treated less favorably than those outside the protected class. Okoye v. Univ. of Texas Houston Health Science Center, 245 F.3d 507, 512-13 (5^th Cir. 2001); Rutherford v. Harris County, 197 F.3d 173, 184 (5^th Cir. 1999). Sex, race, and national origin are all protected classes. 42 U.S.C. § 2000e-et seq; 29 U.S.C. 623(a)(1). A plaintiff is "qualified" for a position if the "objective requirements" for the position are met. Johnson v. Louisiana, 351 F.3d 616, 622 (5^th Cir. 2003). A...