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Robin v. City of Frisco

United States District Court, E.D. Texas, Sherman Division

November 15, 2017




         Pending before the Court is Defendants' Motion for Summary Judgment (Dkt. #35). Having considered the relevant pleadings and evidence, the Court finds the motion should be granted in part and denied in part.


         Plaintiff Janna Robin worked as a detention officer for Defendant, the City of Frisco, Texas (the “City”) from April 25, 2011, to August 11, 2014. For clarity, the Court will lay out Plaintiff's relevant chain of command. Plaintiff's co-worker, Tyler Peace (“Peace”), also worked as a detention officer. Defendant Amy Smith (“Smith”), the Detention Supervisor of the City jail, was both Plaintiff's and Peace's immediate supervisor during the relevant time period. Defendant Greg Ward (“Ward”) is the Deputy Chief of Police for the City. Darren Stevens (“Stevens”) is the Assistant Chief of Police, but is not named as a Defendant. Defendant John Bruce (“Bruce”) is the Chief of Police for the City. Defendant George Purefoy (“Purefoy”) is the City Manager for the City. Not a part of Plaintiff's chain of command but also named as a defendant is Lauren Safranek (“Safranek”), the Director of Human Resources for the City.

         The facts giving rise to the allegations in the case began in July 2013, when Plaintiff was asked to complete Peace's training. This began a long history of animus between the two detention officers. Plaintiff claims that while training Peace, he made certain derogatory comments regarding Plaintiff's gender and complained about her training method. Additionally, Plaintiff claims Peace made offensive racist comments regarding the acquittal of George Zimmerman in the Trayvon Martin criminal trial. In August 2013, Plaintiff complained about Peace's comments to Smith. Thereafter, Plaintiff was removed as Peace's trainer and Smith finalized Peace's training.

         On August 30, 2013, Plaintiff received oral counseling for numerous verbal complaints regarding how she treated prisoners and her co-workers, including Peace. Plaintiff was also informed that Peace was contemplating leaving his job rather than work with Plaintiff. Smith memorialized this conversation into a report she forwarded to Ward.

         On February 15, 2014, Plaintiff sent a memorandum to Smith, entitled “Officer Safety Concern” that complained that Peace's “actions were unwarranted and led to the lack of officer safety” regarding his treatment of certain detainees or prisoners (Dkt. #35 at p. 4). Prior to this memorandum, Plaintiff had not filed a written complaint about Peace or anyone else.

         On February 24, 2014, Smith wrote a report to Ward regarding Plaintiff's Officer Safety Concern memorandum and the relevant video footage. Smith's report indicated that after investigating and reviewing the video footage, there was no officer safety concern regarding Peace's conduct. However, Smith found there were officer safety concerns with regard to Plaintiff's conduct. Specifically, Plaintiff was recorded leaving prisoners unattended, using derogatory comments in reference to Smith, and constantly complaining to her fellow officers.

         On March 7, 2014, Smith issued a written reprimand to Plaintiff for her improper conduct, citing Plaintiff's mishandling of the care and custody of the prisoners, Plaintiff's harassing conduct toward Peace, and Plaintiff's insubordinate or derogatory comments toward Smith. Smith also found that Plaintiff did not state a basis to warrant filing the Officer Safety Concern complaint.

         On March 27, 2014, Plaintiff meet with Hector Quiroga (“Quiroga”), a human resources analyst for the City, to file a complaint regarding workplace harassment, discrimination, and the issuance of the written reprimand. Quiroga communicated Plaintiff's complaints to Safranek on April 1, 2014.

         On April 3, 2014, Plaintiff appealed the reprimand. The same day, Smith denied her appeal and Plaintiff appealed the reprimand to Ward. On April 9, 2014, Ward, after reviewing the video footage, denied Plaintiff's appeal of the reprimand. Plaintiff appealed the denial to Stevens the same day.

         On April 14, 2014, Smith withdrew the portions of the reprimand concerning Plaintiff's harassing conduct toward Peace. On April 24, 2014, Stevens upheld the modified reprimand. Plaintiff appealed the modified reprimand to Bruce. On May 28, 2014, Bruce upheld the modified reprimand as to Plaintiff's handling of prisoners.

         On April 9, 2014, Defendant Smith placed Plaintiff on a Discipline and Performance Improvement Plan (“PIP”). During her tenure with the City, Smith had never issued a PIP before Plaintiff. No other detention officers were on PIPs at this time. Upon receiving the PIP, Plaintiff filed an internal complaint of discrimination with the City and a formal charge with the Equal Employment Opportunity Commission (“EEOC”). On September 16, 2014, Plaintiff received a right to sue letter for conduct that occurred on or before April 9, 2014.

         On April 20, 2014, Plaintiff received her first negative performance evaluation from Smith, indicating Plaintiff needed improvement in four areas: (1) interpersonal skills, (2) dependability, (3) work practices, and (4) pride in profession.

         On April 23, 2014, Plaintiff appealed the PIP to Smith, asserting that it was improper because it was not issued in conjunction with a written evaluation, and argued that the PIP was retaliatory because it was issued one month after she had appealed the reprimand. Smith denied the appeal. On May 2, 2014, Plaintiff appealed the PIP to Defendant Ward. On May 7, 2014, Ward upheld the PIP. On May 14, 2014, Plaintiff appealed the PIP to Stevens. Stevens denied the appeal and on May 16, 2014, and Plaintiff appealed the denial to Bruce. On May 28, 2014, Bruce denied Plaintiff's appeal of the PIP for reasons stated by Stevens. Plaintiff was removed from the PIP on June 12, 2014.

         In July 2014, Peace was transferred back to Plaintiff's shift. On August 1, 2014, Plaintiff had a telephone call with Ward, in which Plaintiff complained about Peace and his recent reassignment to Plaintiff's shift. On August 2, 2014, Plaintiff felt physically ill at work and requested EMS services to take her to the hospital.

         On August 4, 2014, a human resources employee for the City called Plaintiff to check on her status after her emergency room visit. Plaintiff complained that she had been placed in a hostile work environment with a co-worker. The next day, a meeting was arranged with Plaintiff, Safranek, Smith, and Ward in the offices of the City's Human Resources Department. The purpose of this meeting was to discuss and investigate Plaintiff's complaints about Peace and his reassignment to Plaintiff's shift. Plaintiff alleges that the meeting was also intended to complain about Smith and Ward's alleged discriminatory and retaliatory conduct toward Plaintiff.

         On August 5, 2014, Plaintiff arrived to the meeting early and initially only met with Safranek. Shortly after the meeting began, Smith and Ward joined the meeting. During this meeting, Plaintiff made the following complaints regarding Peace: (1) an incident on July 31, 2014, in which Plaintiff and Peace disagreed regarding the transportation of an inmate, (2) an incident in which Peace, despite Plaintiff's suggestion to the contrary, refused to violate procedure to allow a detainee or prisoner to use a temporary debit card, (3) an incident in which Peace took a phone call from a movie scout, seeking to film in the jail, and (4) Plaintiff generally complained that Peace would ask male detainees or prisoners if they are pregnant.

         After being informed that her alleged discrimination examples did not amount to actionable discrimination, Plaintiff attempted to leave the meeting. Ward ordered her to stay in the meeting and informed Plaintiff that leaving would be considered insubordination. Safranek also advised Plaintiff that leaving would be considered job abandonment. Plaintiff left the meeting. That same day, Ward sent Plaintiff a memorandum indicating that he was recommending the termination of her employment as a result her conduct during that meeting.

         On August 6, 2014, Bruce placed Plaintiff on administrative leave, pending the investigation regarding her insubordination. On August 11, 2014, Bruce terminated Plaintiff's employment with the City. Plaintiff appealed her termination to Purefoy with representation by counsel. Based on Purefoy's investigation and an appeal hearing on October 9, 2014, the appeal was denied on October 30, 2014.

         On January 22, 2015, Plaintiff filed an EEOC complaint for the present claims. A few weeks later, the EEOC sent Plaintiff a letter enclosing a copy of the charge to be filed and requested additional information to assist the EEOC with its investigation. Plaintiff responded to the EEOC's questions and submitted the charge for filing on February 26, 2015. The charge was also cross-filed with the Texas Workforce Commission (“TWC”). On March 30, 2016, the EEOC issued a right to sue letter. On June 16, 2016, the TWC issued its notice of right to file a civil action.

         On June 22, 2016, Plaintiff sued Defendants in state court alleging race and gender discrimination, harassment, hostile work environment, and retaliation in violation of state and federal law. On August 3, 2016, Defendants removed this action based upon federal question jurisdiction (Dkt. #1). On September 6, 2016, Plaintiff filed an amended complaint (Dkt. #11).

         On July 27, 2017, Defendants filed a motion for summary judgment (Dkt. #35). On August 4, 2017, Plaintiff filed a response (Dkt. #38). On August 11, 2017, Defendants filed a reply (Dkt. #39). On August 18, 2017, Plaintiff filed a sur-reply (Dkt. #40).


         The purpose of summary judgment is to isolate and dispose of factually unsupported claims or defenses. See Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986). Summary judgment is proper if the pleadings, the discovery and disclosure materials on file, and any affidavits “[show] that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A dispute about a material fact is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The trial court must resolve all reasonable doubts in favor of the party opposing the motion for summary judgment. Casey Enters., Inc. v. Am. Hardware Mut. Ins. Co., 655 F.2d 598, 602 (5th Cir. 1981) (citations omitted). The substantive law identifies which facts are material. Anderson, 477 U.S. at 248.

         The party moving for summary judgment has the burden to show that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Id. at 247. If the movant bears the burden of proof on a claim or defense on which it is moving for summary judgment, it must come forward with evidence that establishes “beyond peradventure all of the essential elements of the claim or defense.” Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986).

         Where the nonmovant bears the burden of proof, the movant may discharge its burden by showing that there is an absence of evidence to support the nonmovant's case. Celotex, 477 U.S. at 325; Byers v. Dall. Morning News, Inc., 209 F.3d 419, 424 (5th Cir. 2000). Once the movant has carried its burden, the nonmovant must “respond to the motion for summary judgment by setting forth particular facts indicating there is a genuine issue for trial.” Byers, 209 F.3d at 424 (citing Anderson, 477 U.S. at 248-49). The nonmovant must adduce affirmative evidence. Anderson, 477 U.S. at 257. No “mere denial of material facts nor . . . unsworn allegations [nor] arguments and assertions in briefs or legal memoranda” will suffice to carry this burden. Moayedi v. Compaq Comput. Corp., 98 Fed.Appx. 335, 338 (5th Cir. 2004). Rather, the Court requires “significant probative evidence” from the nonmovant in order to dismiss a request for summary judgment supported appropriately by the movant. United States v. Lawrence, 276 F.3d 193, 197 (5th Cir. 2001). The Court must consider all of the evidence, but must refrain from making any credibility determinations or weighing the evidence. See Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007).


         I. Claims Arising Before April 9, 2014

         Defendants reiterate that Plaintiff's claims prior to April 9, 2014, are time-barred and, therefore, no purported adverse actions prior to this period may serve as a basis for an independent claim (Dkt. #35 at p. 16). Plaintiff affirmatively pleaded that she is not seeking redress for any conduct except for that which occurred after April 9, 2014 (Dkt. #11 at ¶ 16 n.2). Thus, Plaintiff cannot assert claims of discrimination and retaliation based on incidents occurring before April 9, 2014. However, this does not prevent either Party from relying on such incidents as evidence in support of timely race or gender discrimination and/or retaliation claims. See National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 114-115 (2002) (holding that, even where a time-barred adverse employment action cannot itself form the basis of a discrimination or retaliation claim, the same action may serve as evidence of an employer's discriminatory or retaliatory motive). This evidence may be used to demonstrate the discriminatory animus for a prima facie discrimination or retaliation claim, or successful pretext argument. See United Air Lines v. Evans, 431 U.S. 553, 558 (1977); Lopez v. Kempthorne, 684 F.Supp.2d 827, 852 (S.D. Tex. 2010) (“[A] Court may consider time-barred acts occurring outside the limitations period insofar as they are relevant to the Defendant's motivation”).

         Therefore, although Plaintiff cannot assert independent claims of race or gender discrimination and/or retaliation based upon any adverse employment actions that occurred before April 9, 2014, she may rely upon evidence of adverse employment actions prior to April 9, 2014, to the extent such evidence demonstrates Defendant's alleged discriminatory animus or retaliatory motive.[1]

         Aside from Plaintiff's termination, only some of Plaintiff's claims fall within the timely filing period, namely that (1) Defendants retaliated against Plaintiff for filing a complaint with human resources and/or appealing the written reprimand by placing her on the PIP and issuing a negative performance review, (2) Defendants retaliated against Plaintiff by re-assigning Peace to her shift, (3) Defendants discriminated against Plaintiff based on race and/or gender by issuing a PIP and poor performance review, and (4) Defendants created a hostile work environment because they knew of Peace's alleged improper conduct and failed to take remedial action.

         II. Claims Against the City of Frisco (§ 1983, Title VII and Texas Labor Code[2])

         Title VII Claims

         Under Title VII, Plaintiff must prove that the employer subjected her to an “adverse employment action.” Thompson v. City of Waco, 764 F.3d 500, 503 (5th Cir. 2014). The Fifth Circuit has held that for Title VII discrimination claims, “adverse employment actions consist of ‘ultimate employment decisions' such as hiring, firing, demoting, promoting, granting leave, and compensating.” Id. at 503. In the retaliation context, the United States Supreme Court has focused on “materially adverse actions[, ]” which encompass a broader range of employment decisions and, as such, are “not limited to discriminatory actions that affect the terms and conditions of employment, ” but those that “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 64-68 (2006).

         Regarding Plaintiff's discrimination claims, “neither an employer's collection and use of documented disciplinary actions against an employee (even for use in the decision to terminate) nor a supervisor's decision to report alleged misbehavior constitute an adverse employment action because their effect, if any, on an ultimate employment decision is tangential.” Daniels v. Texas Dep't of Transportation, No. 4:15-CV-00702-CAN, 2017 WL 67926, at *4 (E.D. Tex. Jan. 6, 2017). See, e.g., King v. Louisiana, 294 Fed.Appx. 77, 84-85 (5th Cir. 2008) (per curiam) (“Our discrimination jurisprudence has held that poor performance evaluations, unjust criticism, and being placed on probation do not constitute ‘ultimate employment decisions.'”) (citing McCoy v. City of Shreveport, 492 F.3d 551, 556-57 (5th Cir. 2007)); Roberson v. Game Stop/Babbage's, 152 Fed.Appx. 356, 360 (5th Cir. 2005) (per curiam).

         Accordingly, only Plaintiff's termination may serve as an adverse employment action for her discrimination claim. However, Plaintiff's retaliation claims may relate to the PIP, the negative performance evaluation, Peace's reassignment to her shift, and her termination.

         A. Race and Gender Discrimination

         Plaintiff alleges that the Defendants unlawfully discriminated against her on the basis of her race and gender, in violation of Title VII. Title VII of the Civil Rights Act of 1964 prohibits an employer from “discriminat[ing] against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such ...

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