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Ren v. The University of Houston at Victoria

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

August 1, 2019

LUH YU REN, Plaintiff,


          Nancy K. Johnson United States Magistrate Judge

         Pending before the court[1] is Defendants' Motion for Summary Judgment (Doc. 40). The court has considered the motion, the response, all other relevant filings, and the applicable law. For the reasons set forth below, the court RECOMMENDS that Defendants' motion be GRANTED.

         I. Case Background

         Plaintiff filed this employment action against the University of Houston at Victoria (“UH Victoria”) and the University of Houston System (“UH System”) (collectively, “Defendants”).[2]

         A. Factual Background

         “Plaintiff is a sixty-four (64) years old Chinese male”[3]employed as a professor at UH Victoria's School of Business Administration (the “SBA”).[4] Plaintiff works as an associate professor of quantitative management science.[5] Plaintiff describes his teaching areas as statistics and business forecasting, but he has also regularly taught production management and quantitative decision making.[6]

         For a variety of reasons, during his employment, Plaintiff has launched numerous “email wars” against administrators and colleagues at UH Victoria.[7] According to multiple UH Victoria current and former administrators, Plaintiff caused a “level of disruption and divisiveness” that they had never seen caused by another individual.[8] For example, in 2009, Dr. Jie Yang (“Yang”) was hired to work at UH Victoria.[9] Following Yang's hiring, Plaintiff waged one of his email campaigns against her as Plaintiff disagreed with various aspects of her employment.[10] Plaintiff's email attacks continued until Yang filed a harassment complaint against him.[11] Plaintiff was issued a reprimand for his email campaign against Yang.[12] Plaintiff still complains about Yang's employment and now argues that gender discrimination has propelled Yang's career.[13]

         Faculty at UH Victoria receive annual faculty evaluations pursuant to a Faculty Development and Evaluation Plan (the “FDEP”).[14] When there is money available, UH Victoria faculty receive merit raises based on their annual evaluation scores.[15]Plaintiff has consistently received low annual evaluation scores and regularly received the lowest score in the SBA.[16] Plaintiff's receipt of low scores occurred before and during the relevant time period.[17]

         In 2012, Plaintiff's 2011 annual evaluation score was manually reduced.[18] However, the score was later recalculated in Plaintiff's favor, dropping the manual reduction.[19] Also in 2012, Plaintiff requested $865.20 to attend a conference and was approved for $750.00.[20]

         On November 5, 2012, Plaintiff filed a charge of discrimination with the EEOC (the “2012 EEOC Charge”) alleging discrimination on the basis of race, national origin, age, and retaliation.[21]

         In 2013, Plaintiff requested $2, 085 and was approved for $1, 100 to attend a conference.[22] The same year, numerous other faculty received less money than requested in accordance with UH Victoria's guidelines for faculty travel.[23]

         Plaintiff claims that in 2014, Defendants tried to ruin his career by suggesting that a recent article was self-plagiarized.[24] Defendants' evidence showed that the department chair of Strategy and Decisions Sciences at UH Victoria, Peggy Cloninger (“Cloninger”), expressed a concern with a travel request made by Plaintiff because he was going to present a paper that may have been too similar to one of his previously presented papers.[25]Cloninger offered to meet with Plaintiff to discuss this potential ethical issue.[26] In response, Plaintiff accused Cloninger of plagiarism on a paper she had co-authored, which automatically resulted in an investigation of Cloninger's paper.[27]

         In late 2014 and early 2015, Plaintiff claims that Dr. Farhang Niroomand, the dean at the time, referred to Plaintiff as a “troublemaker” and showed a general dislike towards Plaintiff.[28]Throughout 2015, Plaintiff took issue with the classes that he was assigned to teach.[29] In the summers of 2015 and 2016, Plaintiff's summer class was cancelled, and he was offered another course to teach.[30] Plaintiff declined to teach the alternative course.[31]

         On July 29, 2016, Plaintiff filed an amendment to the 2012 EEOC Charge (the “2016 EEOC Charge”).[32] In the 2016 EEOC Charge, Plaintiff claimed that he was discriminated against on the basis of sex, national origin, age, and disability.[33]

         B. Procedural Background

         Plaintiff filed this lawsuit on February 10, 2017, alleging various causes of action against Defendants pursuant to Title VII of the Civil Rights Act of 1964[34] (“Title VII”), the Age Discrimination in Employment Act[35] (“ADEA”), Title I of the Americans with Disabilities Act[36] (“ADA”), and the Texas Commission on Human Rights Act[37] (“TCHRA”).[38] On December 26, 2017, the court entered a recommendation that all of Plaintiff's claims be dismissed except for his Title VII claims for national origin discrimination, gender discrimination, and retaliation.[39] On January 10, 2018, the court's recommendation was adopted.[40]

         On March 9, 2018, the court entered a recommendation that Plaintiff's request for punitive damages be dismissed.[41] On March 27, 2018, the court's recommendation was adopted.[42] On January 18, 2019, Defendants filed their pending motion for summary judgment.[43]On February 15, 2019, Plaintiff filed a response to Defendants' motion for summary judgment.[44] On February 27, 2019, Defendants filed their objections and reply to Plaintiff's response.[45]

         II. Defendants' Objections to Plaintiff's Evidence

         A party must support its factual positions on summary judgment by citing to particular evidence in the record. Fed.R.Civ.P. 56(c)(1). Federal Rule of Civil Procedure 56(c)(2) allows a movant to object to exhibits that “cannot be presented in a form that would be admissible in evidence” under the Federal Rules of Evidence.

         Affidavits or declarations supporting summary judgment “must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.” Fed.R.Civ.P. 56(c)(4). For a declaration to have the same force and effect of an affidavit, it must be signed and dated and contain a statement “in substantially the following form: . . . ‘I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct.” 28 U.S.C. § 1746. Conclusory allegations, unsubstantiated assertions, improbable inferences, and speculation are not competent evidence. Roach v. Allstate Indem. Co., 476 Fed.Appx. 778, 780 (5th Cir. 2012)(unpublished)(citing S.E.C. v. Recile, 10 F.3d 1093, 1097 (5th Cir. 1993)).

         Defendants object to Plaintiff's attempt to now characterize himself as Taiwanese rather than Chinese.[46] However, in his complaint, Plaintiff argues that he was discriminated against “because of his national origin (i.e., Chinese)[.]”[47] The court cannot allow Plaintiff to conveniently switch between national origins at this stage to raise an issue of fact. Additionally, Plaintiff fails to provide summary judgment evidence that it was his Taiwanese national origin and not his Chinese national origin that was the genesis of the alleged discrimination. Accordingly, the court will consider Plaintiff's national origin to be Chinese.

         Defendants object to Plaintiff's Exhibits 1 and 2 on the grounds that Plaintiff has not properly sworn to their contents under the penalty of perjury. The court questions the admissibility of these exhibits based on the standards articulated above. However, as the alleged errors are easily correctable by Plaintiff, the court will consider the portions of the evidence cited by Plaintiff. See Fed.R.Civ.P. 56(c)(1). However, the court will not consider the numerous conclusory allegations, unsubstantiated assertions, improbable inferences, and speculation contained therein. See Roach, 476 Fed.Appx. at 780.

         Defendants' remaining objections to Exhibit 1 are OVERRULED AS MOOT as the court did not need to consider the objected to portions of the exhibit in ruling on the pending motion.

         The court found it unnecessary to limit the actionable time period in ruling on Defendants' motion. Thus, Defendants' related objections are OVERRULED AS MOOT.

         Defendants object to Plaintiff's Exhibit 5 on the grounds that it is hearsay and violates the best evidence rule. Defendants object to Plaintiff's Exhibit 6 on the grounds that Plaintiff has improperly redacted part of the email chain and the exhibit violates Federal Rule of Evidence 106. Defendants objections are GRANTED. Plaintiff is not prejudiced by the granting of these objections because the factual propositions for which each exhibit is cited have been established by other evidence.[48]

         III. Summary Judgment Standard

         Summary judgment is warranted when the evidence reveals that no genuine dispute exists regarding any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Coastal Agric. Supply, Inc. v. JP Morgan Chase Bank, N.A., 759 F.3d 498, 504 (5th Cir. 2014). A material fact is a fact that is identified by applicable substantive law as critical to the outcome of the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Ameristar Jet Charter, Inc. v. Signal Composites, Inc., 271 F.3d 624, 626 (5th Cir. 2001). “Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial.” Coastal Agricultural Supply, Inc., 759 F.3d at 504 (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).

         The movant must inform the court of the basis for the summary judgment motion and must point to relevant excerpts from pleadings, depositions, answers to interrogatories, admissions, or affidavits that demonstrate the absence of genuine factual issues. See id. at 505 (quoting Celotex Corp., 477 U.S. at 323). If the movant carries its burden, the nonmovant may not rest on the allegations or denials in the pleading but must respond with evidence showing a genuine factual dispute. See id. The court must accept all of the nonmovant's evidence as true and draw all justifiable inferences in her favor. Coastal Agric. Supply, Inc. v. JP Morgan Chase Bank, N.A., 759 F.3d 498, 505 (5th Cir. 2014)(quoting Anderson, 477 U.S. at 255).

         IV. Analysis

         Plaintiff's remaining claims are Title VII claims for national origin discrimination, gender discrimination, and retaliation. Title VII prohibits employers from “discriminat[ing] against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a). In the absence of direct evidence, as is the case here, courts analyze discrimination and retaliation claims under the burden-shifting approach first articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) [hereinafter McDonnell Douglas], and modified in Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003), and Rachid v. Jack In The Box, Inc., 376 F.3d 305 (5th Cir. 2004). Under this “modified McDonnell Douglas approach, ” a plaintiff may trigger a presumption of discrimination by establishing a prima facie case. Rachid, 376 F.3d at 312.

         After a plaintiff has established a prima-facie case, the burden shifts to the defendant to proffer legitimate, nondiscriminatory reasons for its actions. Alkhawaldeh v. Dow Chem. Co., 851 F.3d 422, 426 (5th Cir. 2017). If the defendant satisfies this burden, “the burden shifts back to the employee to demonstrate that the employer's proffered reason is a pretext for discrimination.” Id. At the summary judgment stage, the plaintiff must produce some evidence “demonstrating that discrimination lay at the heart of the employer's decision.” Price v. Fed. Express Corp., 283 F.3d 715, 720 (5th Cir. 2002). In certain circumstances, evidence that an employer's proffered reason is false may be enough to raise a fact issue on pretext if the jury could infer from the falsity of the explanation that discrimination was the real reason. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147-48 (2000); Wal-Mart Stores, Inc. v. Canchola, 121 S.W.3d 735, 740 (Tex. 2003)(stating that, even if the proffered reason is false, the plaintiff's evidence must indicate that discrimination was the real reason).

         The court will first address Defendants' argument regarding the timeliness of Plaintiff's lawsuit before turning to the McDonnell Douglas analysis.

         A. Timeliness of Plaintiff's Lawsuit

         Defendants argue that Plaintiff's lawsuit was untimely because he did not file his lawsuit within ninety days of receipt of his right-to-sue letter. See 42 U.S.C. § 2000e-5(f)(1). Plaintiff received his right-to-sue letter on November 14, 2016.[49] Plaintiff's lawsuit was filed on February 10, 2017, which is within ninety days of his receipt of the right-to-sue letter.[50] Accordingly, Plaintiff's lawsuit was timely filed.

         B. National Origin and Gender Discrimination

         A prima facie case of discrimination requires the plaintiff to show that he: (1) is a member of a protected class; (2) was qualified for his position; (3) suffered an adverse employment action; and (4) was replaced by someone who is not a member of the protected classes to which the plaintiff belongs or was treated less favorably than similarly situated employees of a different national origin or gender. See Okoye v. Univ. of Tex. Houston Health Sci. Ctr., 245 F.3d 507, 512-13 (5th Cir. 2001). In the Fifth Circuit, “[a]dverse employment actions include only ultimate employment decisions such as hiring, granting leave, discharging, promoting, or compensating.” McCoy v. City of Shreveport, 492 F.3d 551, 559 (5th Cir. 2007).

         Defendants argue that Plaintiff has not been subject to an adverse employment action. In response, Plaintiff cites to numerous grievances, most of which do not rise to the level of an ultimate employment action. Plaintiff appears to argue that he has suffered an adverse employment action in the retaliation context, which, as discussed below, has a different standard.[51] The only claim that might qualify as an ultimate employment action is Plaintiff's vague claim of failure to promote.[52]

         In order to show a prima facie case of discrimination on a failure to promote theory, Plaintiff must show that: “(1) he belongs to a protected class; (2) he applied for and was qualified for a position for which applicants were being sought; (3) he was rejected; and (4) a person outside of his protected class was hired for the position.” Burrell v. Dr. Pepper/Seven Up Bottling Group, Inc., 482 F.3d 408, 412 (5th Cir. 2007). Plaintiff has not provided any evidence that: (1) he applied for any position; (2) such application was rejected; and (3) that a person outside of his protected class was hired for that position. Instead, Plaintiff argues that due to Defendants' retaliation against him it was futile for him to apply for any promotion.[53] Again, Plaintiff conflates his retaliation claims with his discrimination claims.

         While the Fifth Circuit recognizes a futility doctrine in the failure to promote context, the doctrine only permits Plaintiff to maintain a failure to promote claim without applying for a promotion where he shows that he “was deterred by a known and consistently enforced policy of discrimination.” See Shackelford v. Deloitte & Touche, LLP, 190 F.3d 398, 406 (5th Cir. 1999). Plaintiff has neither argued nor presented evidence that he was deterred from applying for a promotion by a “consistently enforced policy of discrimination” against male and/or Chinese professors. Accordingly, Plaintiff cannot maintain his gender and national origin discrimination claims on a failure to promote theory.

         For these reasons, the court finds that Plaintiff has failed to present evidence that he suffered an adverse employment action sufficient to show a prima facie case of either Title VII national origin or gender discrimination.

         C. Retaliation

         When reviewing Title VII retaliation claims, a similar McDonnell Douglas framework used for discrimination claims is also applied. The prima facie elements of a retaliation claim are: “(1) the employee engaged in an activity protected under Title VII; (2) the employer took adverse employment action against the employee; and (3) a causal connection exists between the protected activity and the adverse employment action.” Fisher v. Lufkin Indus. Inc., 847 F.3d 752, 757 (5th Cir. 2017).

         1. Protected Activity

         “Protected activities consist of (1) opposing a discriminatory practice; (2) making or filing a charge; (3) filing a complaint; or (4) testifying, assisting, or participating in any manner in an investigation, proceeding, or hearing.” Rodriquez v. Wal-Mart Stores, Inc., 540 Fed.Appx. 322, 328 (5th Cir. 2013)(unpublished)(internal quotation marks omitted)(citing Dias v. Goodman Mfg. Co., 214 S.W.3d 672, 676 (Tex. App.-Houston [14th dist.] 2007, pet. denied)). “Complaining about unfair treatment without specifying why the treatment is unfair, however, is not a protected activity.” Tratree v. BP N. Am. Pipelines, Inc., 277 Fed.Appx. 390, 395 (5th Cir. 2008)(unpublished)(citing Harris-Childs v. Medco Health Solutions, 169 Fed.Appx. 913 (5th Cir. 2006)). “[I]f the conduct complained of by the plaintiff had nothing to do with race, color, religion, sex, or national origin, a retaliation claim cannot be maintained under Title VII.” Bartz v. Mitchell Ctr., A-05-CA-959-LY, 2008 WL 577388, at *2 (W.D. Tex. Jan. 23, 2008).

         Plaintiff summarily claims that he “grieved unfair treatment based on a protected category by Dr. Niroomand and other deans at UHV[.]”[54] However, Plaintiff has not identified a specific complaint that he made that was related to his national origin or gender, other than his EEOC charges.[55] Rather, the record reflects that Plaintiff regularly complained that the general decision-making of Defendants was unfair. Such complaints are not protected activity. See Tratree, 277 Fed.Appx. at 395.

         Accordingly, the court finds that the only protected activity that Plaintiff engaged in was the filing of his two EEOC charges.

         2. Adverse Employment Action ...

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