The opinion of the court was delivered by: Sim Lake United States District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff, Augustine Gayle Webb, brings this action against defendant, Houston Community College System (HCCS), for employment discrimination based on gender in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, and disability in violation of the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq.*fn1 Pending before the court are Defendant's Motion for Summary Judgment (Docket Entry No. 20) and Defendant's Objections to Plaintiff's Verification (Docket Entry No. 28). For the reasons explained below, defendant's motion will be granted and defendant's objections will be overruled.
Plaintiff worked for HCCS in various, mostly part-time, teaching positions from 1991 to 2009. From 2001 to February of 2004 plaintiff held a full-time, administrative position from which HCCS discharged her.*fn2 On February 27, 2004, HCCS placed a Personnel Action Form in the plaintiff's personnel file that described her as "ineligible for rehire."*fn3 On July 30, 2004, an attorney acting on the plaintiff's behalf wrote to HCCS Chancellor, Dr. Bruce Leslie, requesting a meeting "to discuss the wrongful discharge of Augustine G. Webb."*fn4
In the fall of 2005 plaintiff moved to El Paso, Texas, to work for the Internal Revenue Service.*fn5 In September of 2006 plaintiff was diagnosed with multiple sclerosis, but plaintiff did not display visible symptoms of MS until 2008.*fn6
In 2007 plaintiff returned to HCCS to teach part-time.*fn7 During 2007 plaintiff applied for various full-time faculty positions at HCCS, but was not selected.*fn8 The full-time faculty positions for which plaintiff applied in 2007 are: Job 1520 - Instructor of Accounting, on July 10, 2007; Job 1627 - Instructor of Accounting, on October 16, 2007; and Job 1676 - Instructor of Business Administration on November 26, 2007.*fn9
On April 15, 2008, plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) in which she alleged
I. I have been employed with Houston Community College System since January 1991, as an Adjunct Accountant Instructor. From July 1, 2007 up to this date, I have applied for several full time positions and have been denied. Some of the positions have been
4 Accounting Instructor positions and 1 Instructor of Business.
II. No reason has been given for denying me a full time position.
III. I believe I have been discriminated because of my sex, female, in violation of Title VII Civil Rights Act of 1964, as amended. Also, I believe I have been discriminated against because of my disability, in violation of Americans with Disabilities Act of 1990, as amended.*fn10
On May 15, 2008, plaintiff applied for two additional positions: Job 1893 - Instructor of Business Administration, and Job 1896 - Instructor of Accounting.*fn11 On October 1, 2008, the EEOC issued the plaintiff a right-to-sue letter.*fn12 On October 27, 2008, the Social Security Administration issued a Notice of Award granting plaintiff's application for monthly benefits beginning on June 1, 2008, and stating "[w]e found that you became disabled under our rules on January 1, 2008."*fn13 On December 30, 2008, plaintiff initiated this action by filing her Original Complaint (Docket Entry No. 1).
Summary judgment is authorized if the movant establishes that there is no genuine dispute about any material fact and the law entitles it to judgment. Fed. R. Civ. P. 56(c). Disputes about material facts are "genuine" if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 106 S.Ct. 2505, 2511 (1986). The Supreme Court has interpreted the plain language of Rule 56(c) to mandate the entry of summary judgment "after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 106 S.Ct. 2548, 2552 (1986). A party moving for summary judgment "must 'demonstrate the absence of a genuine issue of material fact,' but need not negate the elements of the non-movant's case." Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc). If the moving party meets this burden, Rule 56(c) requires the non-movant to go beyond the pleadings and show by affidavits, depositions, answers to interrogatories, admissions on file, or other admissible evidence that specific facts exist over which there is a genuine issue for trial. Id. Factual controversies are to be resolved in favor of the non-movant, "but only when . . . both parties have submitted evidence of contradictory facts." Id.
In her Original Complaint, plaintiff alleges that HCCS intentionally discriminated against [her] because of her sex and/or her disability in violation of the respective provisions of Title 42 U.S.C. by refusing to promote plaintiff to full time various faculty positions from the Adjunct Accounting Instructor's position which she has held.*fn14
HCCS argues that it is entitled to summary judgment because Webb cannot assert a prima facie case for position 1627 as HCC did not select anyone for this position. Moreover, Webb cannot demonstrate that she was clearly better qualified than the applicants selected for positions 1520 and 1676. Furthermore, Webb has no evidence of sex discrimination as HCC selected a woman for positions 1520 and 1676. Additionally, Webb did not have a disability as defined by the ADA at the time she applied for positions 1520, 1626 and 1676.*fn15
HCCS also argues that "[t]o the extent that Webb alleges claims that were not included in her EEOC Charge, those claims are barred as she failed to exhaust her administrative remedies."*fn16 Plaintiff does not dispute HCCS's arguments that she is unable to establish a prima facie case of discrimination, or that she failed to exhaust her administrative remedies for all of the positions for which she applied. Instead, plaintiff argues that HCCS's inclusion of a form in her personnel file designating her as "ineligible for rehire" was motivated by her disability and has prevented HCCS from hiring/promoting her to a full-time faculty position since then.*fn17
A. Exhaustion of Administrative Remedies
Defendant argues that any claims plaintiff is asserting or attempting to assert for employment discrimination arising from HCCS's failure to promote/hire her for positions not identified in her EEOC charge are barred for failure to exhaust administrative remedies.*fn18 The court agrees.
Courts may not entertain claims brought under Title VII and/or the ADA for which an aggrieved party has not first exhausted her administrative remedies by filing a charge of discrimination with the EEOC. Taylor v. Books A Million, Inc., 296 F.3d 376, 378-79 (5th Cir. 2002), cert. denied, 123 S.Ct. 1287 (2003). See also 42 U.S.C. § 2000e-5(e)(1) (Title VII), and Henson v. Bell Helicopter Textron, Inc., 128 Fed.Appx. 387, *390-91 (5th Cir. 2005) ("The ADA incorporates by reference the two-step administrative and judicial enforcement scheme of Title VII of the 1964 Civil Rights Act. See 42 U.S.C. 12117(a). Thus, before a plaintiff may file a civil action under Title VII or the ADA, [s]he must exhaust administrative remedies, which include filing a charge of discrimination with the EEOC."). While not viewed as a jurisdictional prerequisite, the filing of an EEOC charge "is a precondition to filing suit in district court." Taylor, 296 F.3d at 379 (quoting Dao v. Auchan Hypermarket, 96 F.3d 787, 789 (5th Cir. 1996)).
The filing of an EEOC charge triggers an investigation and a process pursuant to which voluntary compliance may be obtained and discriminatory practices and policies eliminated. Requiring the plaintiff first to state her allegations of employment discrimination in an EEOC charge serves "Congress' intention to promote conciliation rather than litigation in the Title VII context." Burlington Industries, Inc. v. Ellerth, 118 S.Ct. 2257, 2270 (1998). Civil complaints for employment discrimination may only encompass "discrimination like or related to allegations contained in the [EEOC] charge and growing out of such allegation during the pendency of the case before the Commission." National Association of Government Employees v. City Public Service Board of San Antonio, Texas, 40 F.3d 698, 711 (5th Cir. 1994) (emphasis in original). Thus, the failure to assert a claim of discrimination in an EEOC charge and/or its lack of development in the course of a reasonable investigation of that charge precludes the claim from later being brought in a civil suit.
Asserting that "[i]n her EEOC charge, Webb alleges that HCC failed to hire her for four accounting instructor positions and one instructor of business position,"*fn19 but that in her Original Complaint plaintiff alleged that "HCC failed to hire her for 'various' full-time faculty positions,"*fn20 and that "[i]n her deposition, Webb testified that seven positions for which she applied were included in her lawsuit,"*fn21 defendant argues that since plaintiff's "charge only included five positions . . . [plaintiff] has not exhausted her administrative remedies for seven positions."*fn22 Asserting that "in her Charge, Webb identifies the dates of discrimination as July 1, 2007 through April 2, 2008,"*fn23
HCCS argues that the job positions at issue in this action are only those job positions for which the plaintiff applied between those dates. HCCS contends that "[d]uring that time period, Webb did, indeed, apply for four accounting instructor positions and one business administration instructor position - job posting numbers 1520 (which included positions 3648, 3641 and 4006), 1627, and 1676."*fn24 Thus, HCCS contends that "the only job postings that are a part of this lawsuit are 1520, 1627, and 1676."*fn25
Plaintiff has not responded to HCCS' argument that she failed to exhaust her administrative remedies for any claims that she is asserting or attempting to assert based on HCCS's failure to hire/promote her to positions for which she applied before July 1, 2007, and after April 2, 2008. Local Rule 7.4 provides:
Failure to respond will be taken as a representation of no opposition. Responses to motions A Must be filed by the submission day;
C Must include or be accompanied by authority; and D Must be accompanied by a separate form order denying the relief sought.
S.D.Tex.R. 7.4 (2000). In accordance with Local Rule 7.4, the court takes plaintiff's failure to respond to defendant's assertion that she failed to exhaust her administrative remedies for any claims based on its failure to hire/promote her to positions other than those included in job postings 1520, 1627, and 1676, as a representation of no opposition to the legal arguments and factual evidence submitted by the defendant in support of the pending motion. Eversley v. MBank Dallas, 843 F.2d 172, 173-174 (5th Cir. 1988) (noting that when the non-movant submits no response, the movant's factual allegations are properly taken as true). Accordingly, the court concludes that the defendant is entitled to summary judgment on any claims that plaintiff has asserted or is attempting to assert based on HCCS's failure to hire/promote her to positions not listed in job postings 1520, 1627, and 1676 for failure to exhaust administrative remedies.
Title VII of the Civil Rights Act of 1964 prohibits employers from taking adverse employment actions against employees on the basis of gender. Plaintiffs in Title VII cases may rely on either direct or circumstantial evidence, or both. See Machinchick v. PB Power, Inc., 398 F.3d 345, 350-52 (5th Cir. 2005); Wallace v. Methodist Hosp. System, 271 F.3d 212, 219 (5th Cir. 2001), cert. denied, 122 S.Ct. 1961 (2002). Direct evidence is "evidence which, 'if believed, proves the fact [in question] without inference or presumption.'" Fabela v. Socorro Independent School District, 329 F.3d 409, 415 (5th Cir. 2003) (quoting Brown v. East Mississippi Electric Power Association, 989 F.2d 858, 861 (5th Cir. 1993)). "In a Title VII context, direct evidence includes any statement or document which shows on its face that an improper criterion served as a bases . . . for the adverse employment action." Id. If a plaintiff presents direct evidence of discrimination she is allowed to bypass the burden-shifting analysis used in circumstantial evidence cases stated in McDonnell Douglas Corp. v. Green, 93 S.Ct. 1817 (1973). Id. The McDonnell Douglas burden-shifting analysis requires the plaintiff to present evidence establishing the existence of a prima facie case. 93 S.Ct. at 1824. To establish a prima facie case of discriminatory failure to hire/promote the plaintiff must demonstrate that (1) she belongs to a protected class, (2) she sought and was qualified for a job for which the employer was seeking applicants, (3) despite her qualifications she was rejected, and (4) the position she sought was filled by someone outside her protected class or she was otherwise not promoted because of her protected characteristic. Id. Once the plaintiff establishes a prima facie case, a presumption of discrimination arises and the burden of production shifts to the defendant to offer evidence of a legitimate, non-discriminatory reason for the actions at issue. If the defendant meets this burden, the presumption of discrimination created by the plaintiff's prima facie case disappears, and the burden shifts to the plaintiff to produce evidence capable of meeting the ultimate burden of persuasion on the issue of intentional discrimination. Id.
Plaintiff alleges that HCCS intentionally discriminated against her on the basis of gender in violation of Title VII of the Civil Rights Act of 1964, as amended, by failing to promote her from a part-time to a full-time faculty position on five different occasions in 2007. HCCS argues that it is entitled to summary judgment on plaintiff's claims for gender discrimination in violation of Title VII because she is unable to establish either a prima facie case of discrimination, or a genuine issue of material fact for trial regarding the truth of HCCS's legitimate, non-discriminatory reasons for failing to hire/promote her to any of the full-time faculty positions that she sought in 2007.
Citing the declaration of Don Washington, Director of Employment Services, and the exhibits referenced therein, HCCS asserts that job posting 1520 listed three Instructor of Accounting positions: 3643, 3641, and 4006.*fn26 HCCS received ten applications for job posting 1520. The applications were reviewed by a five-member screening committee chaired by Dr. Mesfin Genanaw. Although plaintiff ranked second out of ten candidates following the screening committee's initial review of the applications, plaintiff ranked ninth out of ten applicants following the screening committee's interviews of the candidates. Only the top five ranking applicants advanced to interviews with the hiring authority, Dean Arnold Goldberg.*fn27 Two men and one woman were selected to fill the three Instructor of Accounting positions advertised in job posting 1520.*fn28 HCCS contends that the plaintiff was not selected to fill any of these three positions because the screening committee found her to be less qualified than the five applicants who advanced to interviews with Dean Goldberg.*fn29
Citing the declaration of Dr. Arnold Goldberg, Dean of Workforce and Economic Development, HCCS contends that plaintiff was not selected for the Instructor of Accounting position advertised in job posting 1627 because that job posting was canceled.*fn30 Goldberg explains that [i]n 2007, another full-time faculty instructor of accounting position became available. The position was posted under requisition number 1627. During that time, however, HCC was undergoing a "Regionalization." As a result, HCC determined that position 1627, which had originally been listed and advertised as a position located at the Southwest College, needed to be moved to another HCC campus. As a result, the position was cancelled so that it could be reposted at its new location and the new colleges could create their own screening committees. No applicants were selected for position 1627.*fn31
Citing the declaration of Rudy Soliz, Department Chair for the Business Administration Department at the HCCS Northeast Campus and chair of the screening committee for job posting 1676, HCCS contends that the plaintiff was not selected for the Instructor of Business Administration position advertised in job posting 1676 because the position was for an instructor who would teach international business, marketing, logistics, and management, and plaintiff did not have experience in any of those fields.*fn32 Soliz explains
5. Twenty-six people, including [plaintiff], applied for position 1676. In accordance with the HCC's screening process, the committee reviewed each applicant's application and other submitted documentation during the paper review process.
6. During the paper review process, the screening committee determined that [plaintiff] was not qualified for the position, as she did not [have] any experience in either international business, marketing, logistics, or management. As a result, she was scored "NQ" (not qualified) and was not selected for an interview.
7. During the paper review process, 18 other applicants besides [plaintiff] were scored as "NQ" and were not selected for an interview because the screening committee determined that they did not meet the necessary minimum qualifications for the position. This group included both men and women.
8. Following the paper review process, the screening committee interviewed and scored the remaining seven applicants. Based on the results of the interview scores, the committee recommended the top two ranking applicants to advance on the "short list" to the hiring authority for further review. The screening committee determined that these two finalists, Tiffany Champagne and Christy Shell, were the most qualified out of the applicant pool.*fn33
Defendant argues that plaintiff is unable to establish a prima facie case of gender discrimination arising from its failure to hire/promote plaintiff to any of the positions advertised pursuant to job postings 1520, 1627, or 1676 because one of the three positions filled pursuant to job posting 1520 was filled by a woman, because the position advertised in job posting 1627 was canceled and not filled by anyone, and because the position filled pursuant to job posting 1676 was filled by a woman. Defendant argues that even if plaintiff were able to establish a prima facie case of discrimination, plaintiff is not able to raise a genuine issue of material fact for trial regarding the truth of HCCS's legitimate, ...