United States District Court, S.D. Texas, Houston Division
MEMORANDUM AND OPINION
Rosenthal, Chief United States District Judge
Harper was the Assistant Director of At-Risk in the Fort Bend
Independent School District. The At-Risk Department provided
student support services like pregnancy education, positive
behavior support, and summer school. In December 2014,
Michael Ewing, the director of this department, and Dr.
Lupita Garcia, the executive director, presented a proposal
to the School District's Executive Leadership Team to
restructure Ms. Harper's assistant director position into
two coordinator positions. In early January 2015, Ms. Harper
told Mr. Ewing that she might need to take leave under the
Family and Medical Leave Act for foot surgery. In early
February, Dr. Garcia and Mr. Ewing informed Ms. Harper that
the School District had accepted the restructuring proposal
to eliminate her position and replace it with a coordinator.
The change was scheduled for the end of the fiscal year, June
Harper was offered the coordinator position, which had a
lower salary than her current position. Ms. Harper was told
to inform the District by March 4, 2015 whether she would
accept the coordinator position. She did not respond to that
March 5, Ms. Harper began her FMLA leave. She was on leave
until June 9, 2015. During that period, the coordinator
position that Ms. Harper was offered, but did not take, was
posted on the School District's employment website. Ms.
Harper did not apply. When she returned to work on June 9,
she was informed that because her position was being
eliminated, and she had not taken the coordinator position,
her last day of work would be June 30, 2015.
Harper filed this suit alleging that the School District
violated Texas law by discriminating against her because of
her race and disability and retaliated against her for filing
an internal grievance complaining of what she perceived as
discriminatory practices. She also alleged that the School
District violated the FMLA by interfering with her FMLA leave
and retaliating against her for taking leave. She based her
claims on the School District's decision to eliminate her
position and refusing to transfer her to a new position. The
court dismissed Harper's Chapter 21 retaliation claim
because the decision to reorganize the department was made
before any protected activity; allegations that, as a matter
of law, could not show causation. (Docket Entry No. 15). The
School District now moves for summary judgment on Ms.
Harper's remaining claims. (Docket Entry No. 18).
on a careful review of the motion, response, reply, and
surreply; the record; the relevant law; and the arguments of
counsel, the court grants Fort Bend Independent School
District's motion for summary judgment. (Docket Entry No.
18). The reasons for the rulings are set out below.
Bend Independent School District hired Ilene Harper in 2007
as its Assistant Director of Student Support Services and
Cultural Diversity. (Docket Entry No. 19, Ex. A at ¶ 2).
During the summer before the 2014 to 2015 school year, that
department was reorganized and restructured, and Ms.
Harper's position was moved to the Federal and Special
Programs Department. (Docket Entry No. 18, Ex. B at ¶
4). In the reorganization, Ms. Harper's position was
retitled the Assistant Director of At-Risk. (Id. at
¶ 5). Dr. Lupita Garcia was the Executive Director of
Federal and Special Programs, which included the At-Risk
department. (Id. at ¶ 2). The School District
hired Michael Ewing as the Director after Ms. Harper was
named Assistant Director. (Id. at ¶ 5). Mr.
Ewing was Ms. Harper's direct supervisor. Mr. Ewing, like
Ms. Harper, is African-American. (Id., Ex. A at 10;
Ex. C at ¶ 2).
second phase of the reorganization took place at the
beginning of the 2014 to 2015 school year. Dr. Garcia and Mr.
Ewing worked together to restructure and reorganize the
At-Risk Department. (Id., Ex. B at ¶¶ 4-6;
Ex. C at ¶ 5). As part of the reorganization, Dr.
Garcia, in consultation with Mr. Ewing, asked that Ms.
Harper's position, Assistant Director of At-Risk, be
converted into two coordinator positions. (Id., Ex.
B at ¶¶ 4-6; Ex. C at ¶ 5). It was too late to
convert Ms. Harper's position for the school year, but
one coordinator position was created. (Id., Ex. B at
¶¶ 4-6; Ex. C at ¶ 5). At the beginning of the
2014 to 2015 school year, She'Nee Young, who is
African-American, was hired to fill that position, with the
title of Coordinator At-Risk. (Id., Ex. B at ¶
6; Ex. C at ¶ 5).
December 10, 2014, Dr. Garcia, again in consultation with Mr.
Ewing, presented staffing requests for the At-Risk Department
to the School District's Executive Leadership Team.
(Id., Ex. B at ¶ 7; Ex. B-2; Ex. B-3; Ex. C at
¶ 7). Dr. Garcia formally requested that Ms.
Harper's assistant director position be eliminated and
replaced with another new coordinator position, to be called
the Coordinator At-Risk Programs. (Id., Ex. B at
¶¶ 7-9; Ex. C at ¶¶ 7-9).
January 6, 2015, Ms. Harper told Mr. Ewing that she might
have to take leave under the Family and Medical Leave Act for
surgery to remove a bunion from her foot. (Id., Ex.
A at 15; Docket Entry No. 19, Ex. A at ¶ 8). In early
February 2015,  Dr. Garcia and Mr. Ewing met with Ms.
Harper to tell her that her assistant director position would
be eliminated and replaced by an added coordinator position
beginning the next school year. (Docket Entry No. 18, Ex. B
at ¶ 8; Ex. C at ¶ 8; Docket Entry No. 19, Ex. B at
16). On February 27, 2015, Dr. Garcia and Mr. Ewing met with
Ms. Harper again to discuss the restructuring. (Docket Entry
No. 18, Ex. B at ¶ 9; Ex. C at ¶9; Docket Entry No.
19, Ex. B at 17). During this meeting, Dr. Garcia offered Ms.
Harper the newly created coordinator position. (Docket Entry
No. 18, Ex. B at ¶ 9). Dr. Garcia told Ms. Harper that
her salary would remain the same for the rest of the school
year. (Id.). When Ms. Harper asked about the salary
for the coordinator position, Dr. Garcia responded that Ms.
Harper's salary would be “adjusted in accordance
with [the School District's] salary schedule” for
the next year. (Id.). Ms. Harper was told to inform
Dr. Garcia or Mr. Ewing whether she wanted to accept the
coordinator position by March 2, 2015. (Id.).
that meeting, Dr. Garcia sent a memo to “recap the
conversation” she had with Ms. Harper and Mr. Ewing
about the restructuring. (Id., Ex. B-4). In this
memo, Dr. Garcia extended a formal written offer of the
coordinator position, and stated that “[a]s an employee
of [Fort Bend Independent School District] in good standing,
” Ms. Harper was “eligible to apply for any other
positions that we may have available.” (Id.).
March 4, 2015, Ms. Harper met with the School District's
Chief Human Resources Officer, Kermit Spears, to discuss the
elimination of her assistant director position and the
creation of the coordinator role. (Id., Ex. D at
¶ 4; Ex. D-1). Mr. Spears told Ms. Harper that she would
be paid $11, 000 less in the coordinator position than she
was in her assistant director position. (Id., Ex. D
at ¶ 4; Docket Entry No. 19, Ex. B at 38, 40). Mr.
Spears reurged Dr. Garcia's offer of the coordinator
position, and asked Ms. Harper to let him know by the end of
that day whether she would accept the offer. (Docket Entry
No. 18, Ex. D at ¶ 4). He also told Ms. Harper that if
she did not accept the coordinator position, it would be
posted on the School District's employment website for
competitive applications. (Id.). Ms. Harper did not
accept the position by the deadline. (Id.). The day
of the meeting with Mr. Spears, March 4, was also Ms.
Harper's last day of work before her foot surgery and the
beginning of her FMLA leave. (Id., Ex. D-8).
March 26, 2015, Harper filed an internal grievance,
complaining about the School District's racially
discriminatory practices. She included the restructuring and
the elimination of her assistant director position and offer
of the coordinator position and the associated pay decrease.
(Id., Ex. D-7; Docket Entry No. 19, Ex. B at 42,
coordinator position was posted on the School District's
employment website on May 4, 2015. (Docket Entry No. 18, Ex.
D at ¶ 5). The application deadline was May 15.
(Id.). Ms. Harper did not apply for the job.
(Id., Ex. D at ¶ 4). After interviewing three
candidates, the School District hired DeAndria Brigham.
(Id., Ex. D at ¶ 5). Like Ms. Harper, Ms.
Brigham is African-American. (Id.).
Harper returned to work on June 9, 2015. (Docket Entry No.
19, Ex. B at 57). She found a large number of boxes stored in
her office. (Id. at 55-56; Ex. C). Ms. Harper did
not resume her normal duties, which included assignments
relating to summer-school work. (Id., Ex. B at
55-56). Instead, she did clerical work. (Id.).
9, Ms. Harper was given a letter stating that because her
assistant director position was eliminated, and because she
had not accepted the coordinator position, her last day of
work would be June 30, 2015. (Docket Entry No. 18, Ex. A-3).
The letter ended by stating: “Please note that you are
eligible to apply for any position for which you are
qualified.” (Id.). At the end of the fiscal
year, June 30, 2015, Ms. Harper was terminated.
(Id., Ex. A at 75).
Harper filed suit on May 25, 2016 in Texas state court. She
asserted race and disability discrimination and retaliation
claims under Chapter 21 of Texas law, and interference and
retaliation claims under the Family and Medical Leave Act.
(Docket Entry No. 1, Ex. 2). The School District timely
removed, and moved to dismiss the Chapter 21 claims for a
lack of subject-matter jurisdiction. (Docket Entry Nos. 1,
5). The court dismissed Ms. Harper's Chapter 21
retaliation claim because the School District's December
2014 decision to reorganize the At-Risk Department and
eliminate the assistant director position was made before she
made any complaint. (Docket Entry No. 15). The court denied
the motion to dismiss the Chapter 21 discrimination claims.
School District now moves for summary judgment on Ms.
Harper's Chapter 21 and FMLA claims. (Docket Entry No.
18). Ms. Harper responded, the School District replied, and
Ms. Harper filed a surreply. (Docket Entry Nos. 19, 20, 24).
The court heard argument on the motions. (Docket Entry No.
25). The parties' arguments and the record evidence are
analyzed under the applicable legal standards.
The Legal Standards
judgment is required when ‘the movant shows that there
is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.'”
Trent v. Wade, 776 F.3d 368, 376 (5th Cir. 2015)
(quoting Fed.R.Civ.P. 56(a)). “A genuine dispute of
material fact exists when the ‘evidence is such that a
reasonable jury could return a verdict for the nonmoving
party.'” Nola Spice Designs, LLC v. Haydel
Enters., Inc., 783 F.3d 527, 536 (5th Cir. 2015)
(quoting Anderson v. Liberty Lobby, 477 U.S. 242,
248 (1986)). “The moving party ‘bears the initial
responsibility of informing the district court of the basis
for its motion, and identifying those portions of [the
record] which it believes demonstrate the absence of a
genuine issue of material fact.'” Id.
(quoting E.E.O.C. v. LHC Grp., Inc., 773 F.3d 688,
694 (5th Cir. 2014)); see also Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986).
the non-movant bears the burden of proof at trial, the movant
may merely point to the absence of evidence and thereby shift
to the non-movant the burden of demonstrating by competent
summary judgment proof that there is an issue of material
fact warranting trial.” Id. (quotation marks
omitted); see also Celotex, 477 U.S. at 325.
Although the party moving for summary judgment must
demonstrate the absence of a genuine issue of material fact,
it does not need to negate the elements of the
nonmovant's case. Boudreaux v. Swift Transp.
Co., 402 F.3d 536, 540 (5th Cir. 2005). “A fact is
‘material' if its resolution in favor of one party
might affect the outcome of the lawsuit under governing
law.” Sossamon v. Lone Star State of Texas,
560 F.3d 316, 326 (5th Cir. 2009) (quotation omitted).
“If the moving party fails to meet [its] initial
burden, the motion [for summary judgment] must be denied,
regardless of the nonmovant's response.” United
States v. $92, 203.00 in U.S. Currency, 537 F.3d 504,
507 (5th Cir. 2008) (quoting Little v. Liquid Air
Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc)).
the moving party [meets its initial burden], the non-moving
party must ‘go beyond the pleadings and by her own
affidavits, or by the depositions, answers to
interrogatories, and admissions on file, designate specific
facts showing that there is a genuine issue for
trial.'” Nola Spice, 783 F.3d at 536
(quoting E.E.O.C., 773 F.3d at 694). The nonmovant
must identify specific evidence in the record and articulate
how that evidence supports that party's claim.
Baranowski v. Hart, 486 F.3d 112, 119 (5th Cir.
2007). “This burden will not be satisfied by
‘some metaphysical doubt as to the material facts, by
conclusory allegations, by unsubstantiated assertions, or by
only a scintilla of evidence.'” Boudreaux,
402 F.3d at 540 (quoting Little, 37 F.3d at 1075).
In deciding a summary judgment motion, the court draws all
reasonable inferences in the light most favorable to the
nonmoving party. Connors v. Graves, 538 F.3d 373,
376 (5th Cir. 2008); see also Nola Spice, 783 F.3d
Employment Discrimination under Chapter 21
Texas Supreme Court has consistently held that because one
purpose of Chapter 21 is to execute of the policies of Title
VII and the Americans with Disabilities Act, courts should
look to the analogous federal statutes and cases in analyzing
race and disability discrimination claims under Chapter 21.
See City of Houston v. Proler, 437 S.W.3d 529, 532
& n.7 (Tex. 2014) (ADA); Mission Consol. Indep. Sch.
Dist. v. Garcia, 372 S.W.3d 629, 633-34 (Tex. 2012)
discrimination in violation of Title VII can be proven by
either direct or circumstantial evidence. Russell v.
McKinney Hosp. Venture, 235 F.3d 219, 222 (5th Cir.
2000). Evidence is direct if it would prove the fact in
question without inference or presumption. Fabelav. Socorro Indep. Sch. Dist., 329 F.3d 409, 415 (5th
Cir. 2003) (citations omitted). If no direct evidence exists,
the court uses the familiar burden-shifting framework in
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802
(1973), to determine whether summary ...