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Harper v. Fort Bend Independent School District

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

May 9, 2017

ILENE HARPER, Plaintiff,
v.
FORT BEND INDEPENDENT SCHOOL DISTRICT, Defendant.

          MEMORANDUM AND OPINION

          Lee H. Rosenthal, Chief United States District Judge

         Ilene 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 30, 2015.

         Ms. 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 offer.

         On 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.

         Ms. 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).

         Based 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.

         I. Background[1]

         Fort 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).

         A 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).

         On 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).

         On 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, [2] 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.).

         After 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.).

         On 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).

         On 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, 49).

         The 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.).

         Ms. 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.).

         On June 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).

         Ms. 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. (Id.).

         The 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.

         II. The Legal Standards

         A. Summary Judgment

         “Summary 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).

         “Where 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)).

         “Once 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 at 536.

         B. Employment Discrimination under Chapter 21

         The 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) (Title VII).

         Employment 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 ...


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