United States District Court, E.D. Texas, Sherman Division
MEMORANDUM OPINION AND ORDER
L. MAZZANT UNITED STATES DISTRICT JUDGE.
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.
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.
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.
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.
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.
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.
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.
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.
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
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.
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.
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
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.
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.
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
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.
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.
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.
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.
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.
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
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.
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).
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).
Claims Arising Before April 9, 2014
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”).
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
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.
Claims Against the City of Frisco (§ 1983, Title VII and
Texas Labor Code)
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).
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).
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.
Race and Gender Discrimination
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