United States District Court, S.D. Texas, Corpus Christi Division
ORDER ON MOTION FOR SUMMARY JUDGMENT
GONZALES RAMOS UNITED STATES DISTRICT JUDGE.
Cynthia Perez (Perez) filed this action against her former
employer, Corpus Christi Independent School District (CCISD),
alleging that her termination was discriminatory on the basis
of race and sex. Before the Court is CCISD's Motion for
Summary Judgment (D.E. 20), Perez's response (D.E. 21),
CCISD's reply (D.E. 26), CCISD's objections to
Perez's summary judgment evidence and motion to strike
(D.E. 26), and Perez's response to CCISD's
evidentiary objections (D.E 29). CCISD's summary judgment
motion challenges all of Perez's claims that it
discriminated against her. For the reasons set out below, the
Court GRANTS the motion (D.E. 20).
before the Court is CCISD's Motion for Enforcement of
Protective Order and for Sanctions (D.E. 22). CCISD's
motion objects to Perez's filing of confidential
materials in support of her summary judgment response without
ensuring that they were filed under seal. The motion (D.E.
22) is GRANTED IN PART and DENIED IN PART. The Court GRANTS
the request for enforcement of the protective order and
ORDERS that the response and its exhibits be placed under
seal. The Court DENIES sanctions as set out more fully below.
JUDGMENT STANDARD OF REVIEW
judgment is proper if there is no genuine issue as to any
material fact and the moving party is entitled to judgment as
a matter of law. Fed.R.Civ.P. 56(c). A genuine issue exists
“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
Court must examine “whether the evidence presents a
sufficient disagreement to require submission to a jury or
whether it is so one-sided that one party must prevail as a
matter of law.” Id. at 251-52. In making this
determination, the Court must consider the record as a whole
by reviewing all pleadings, depositions, affidavits, and
admissions on file, and drawing all justifiable inferences in
favor of the party opposing the motion. Caboni v. Gen.
Motors Corp., 278 F.3d 448, 451 (5th Cir. 2002).
Court may not weigh the evidence or evaluate the credibility
of witnesses. Id. Furthermore, “affidavits
shall be made on personal knowledge, shall set forth such
facts as would be admissible in evidence, and shall show
affirmatively that the affiant is competent to testify to the
matters stated therein.” Fed.R.Civ.P. 56(e); see
also Cormier v. Pennzoil Exploration & Prod. Co.,
969 F.2d 1559, 1561 (5th Cir. 1992) (per curiam) (refusing to
consider affidavits that relied on hearsay statements);
Martin v. John W. Stone Oil Distrib., Inc., 819 F.2d
547, 549 (5th Cir. 1987) (per curiam) (stating that courts
cannot consider hearsay evidence in affidavits and
depositions). Unauthenticated and unverified documents do not
constitute proper summary judgment evidence. King v.
Dogan, 31 F.3d 344, 346 (5th Cir. 1994) (per curiam).
moving party bears the initial burden of showing the absence
of a genuine issue of material fact. Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). If the moving party
demonstrates an absence of evidence supporting the nonmoving
party's case, then the burden shifts to the nonmoving
party to come forward with specific facts showing that a
genuine issue for trial does exist. Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986). To sustain this burden, the nonmoving party cannot
rest on the mere allegations of the pleadings. Fed.R.Civ.P.
56(e); Anderson, 477 U.S. at 248. “After the
nonmovant has been given an opportunity to raise a genuine
factual issue, if no reasonable juror could find for the
nonmovant, summary judgment will be granted.”
Caboni, 278 F.3d at 451.
evidence must be evaluated under the summary judgment
standard to determine whether the moving party has shown the
absence of a genuine issue of material fact. “[T]he
substantive law will identify which facts are material. Only
disputes over facts that might affect the outcome of the suit
under the governing law will properly preclude the entry of
summary judgment.” Anderson, 477 U.S. at 248.
facts set out in this section are undisputed. CCISD hired
Perez as a Junior Buyer in its Purchasing and Distribution
Department in 1993. CCISD later promoted her to Buyer and
then, in 2001, to Senior Buyer. D.E. 20-1, ¶ 4. She
served as an at-will employee throughout her employment.
Id. CCISD terminated her employment after she was
arrested and admitted guilt with respect to a criminal charge
for furnishing alcohol to minors.
part of CCISD employment, Perez was subject to a number of
restrictions on her behavior:
• Policy DH-Educator's Code of Ethics, including:
Standard 1.7. The educator shall comply with state
regulations, written local Board policies, and other state
and federal laws. . . .
Standard 3.2. The educator shall not intentionally,
knowingly, or recklessly treat a student or minor in a manner
that adversely affects or endangers the learning, physical
health, mental health, or safety of the student or minor. . .
Standard 3.7. The educator shall not furnish alcohol or
illegal/unauthorized drugs to any person under 21 years of
age unless the educator is a parent or guardian of that child
or knowingly allow any person under 21 years of age unless
the educator is a parent or guardian of that child to consume
alcohol or illegal/ unauthorized drugs in the presence of the
D.E. 20-1, p. 28.
• Regulation DBAA-Employment Requirements and
Restrictions; Criminal History and Credit Reports, setting
out factors to be considered when evaluating criminal history
and employment eligibility, including:
1. Nature, seriousness and extent of the crime; . . . [and]
6. Amount of time that has elapsed since the crime was
committed . . . .
D.E. 20-1, p. 8.
See also, D.E. 20-2, pp. 2-3 (memorandum
recommending termination of Perez's at-will employment,
applying these restrictions).
The Perez Criminal Charge
about October 25, 2014, Perez's daughter celebrated her
eighteenth birthday at the Perez home, serving alcohol to a
number of minors which included CCISD students. D.E. 20-3, p.
10; D.E. 20-4, p. 3. Perez was home at the time. When police
responded to a complaint about the party, Perez was arrested
on misdemeanor charges of furnishing alcohol to minors. D.E.
20-1, pp. 36-43 (CCISD Investigation Report), 47-51
(Agreement for Pretrial Diversion). The next day, Perez
complied with CCISD policy and advised the CCISD legal
department and her supervisor, Brian Bray, of the arrest.
D.E. 20-3, p. 19; D.E. 20-4, p. 3. No. adverse employment
action was taken against Perez at that time.
Donna Adams, the CCISD Executive Director of Certified and
Professional Personnel, learned of the arrest through local
media several days later, CCISD placed Perez on
administrative leave without pay pending an investigation.
D.E. 20-1, ¶¶ 5, 6; D.E. 20-1, p. 32. CCISD's
Chief of Police conducted that investigation and waited for a
resolution of the charges. Ultimately, Perez admitted guilt
in a written agreement for pretrial diversion. As a result,
she avoided prosecution and conviction, but was subject to
court supervision for several months. Perez submitted to
monthly monitoring by the Nueces County Community Supervision
and Corrections Department (Adult Probation) for six months,
agreed to abstain from alcohol and drug use and to submit to
random testing, agreed to perform thirty hours of community
service, and agreed to pay a $500 pretrial diversion program
fee and other fees. D.E. 20-1, pp. 48-51.
receiving a copy of the agreement and pursuant to CCISD Board
Policy DBAA, the CCISD Criminal History Review Committee met
to evaluate Perez's employment. D.E. 20-1, ¶ 6. The
Committee recommended termination, but allowed that, after
successful completion of her pretrial diversion agreement,
Perez could apply anew for any positions for which she was
suited. Her eligibility for employment at that time would be
reevaluated. D.E. 20-2, p. 3. Upon the Committee's
recommendation, CCISD terminated Perez's employment in a
memorandum dated February 17, 2015, which also advised her of
her eligibility to reapply. D.E. 20-2, pp. 5-6. Perez has not
applied for any position at CCISD since she successfully
completed her pretrial diversion agreement. D.E. 20-3, p. 26.
Evidence of Discrimination; The Comparators'
deposition questioning, Perez could not identify any specific
acts of discrimination by CCISD based on her being a female.
D.E. 20-3, p. 14. Thus her case is based on a theory of
disparate treatment. She contends that she was discriminated
against because four other CCISD employees, who are male,