United States District Court, S.D. Texas, Houston Division
MEMORANDUM AND RECOMMENDATION
K. Johnson United States Magistrate Judge
before the court 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
filed this employment action against the University of
Houston at Victoria (“UH Victoria”) and the
University of Houston System (“UH System”)
is a sixty-four (64) years old Chinese
male”employed as a professor at UH
Victoria's School of Business Administration (the
“SBA”). Plaintiff works as an associate professor
of quantitative management science. Plaintiff describes his
teaching areas as statistics and business forecasting, but he
has also regularly taught production management and
quantitative decision making.
variety of reasons, during his employment, Plaintiff has
launched numerous “email wars” against
administrators and colleagues at UH Victoria. 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. For example, in 2009, Dr. Jie Yang
(“Yang”) was hired to work at UH
Victoria. Following Yang's hiring, Plaintiff
waged one of his email campaigns against her as Plaintiff
disagreed with various aspects of her
employment. Plaintiff's email attacks continued
until Yang filed a harassment complaint against
him. Plaintiff was issued a reprimand for his
email campaign against Yang. Plaintiff still complains
about Yang's employment and now argues that gender
discrimination has propelled Yang's career.
at UH Victoria receive annual faculty evaluations pursuant to
a Faculty Development and Evaluation Plan (the
“FDEP”). When there is money available, UH
Victoria faculty receive merit raises based on their annual
evaluation scores.Plaintiff has consistently received low
annual evaluation scores and regularly received the lowest
score in the SBA. Plaintiff's receipt of low scores
occurred before and during the relevant time
2012, Plaintiff's 2011 annual evaluation score was
manually reduced. However, the score was later
recalculated in Plaintiff's favor, dropping the manual
reduction. Also in 2012, Plaintiff requested
$865.20 to attend a conference and was approved for
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,
2013, Plaintiff requested $2, 085 and was approved for $1,
100 to attend a conference. The same year, numerous other
faculty received less money than requested in accordance with
UH Victoria's guidelines for faculty
claims that in 2014, Defendants tried to ruin his career by
suggesting that a recent article was
self-plagiarized. 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.Cloninger offered to meet with Plaintiff
to discuss this potential ethical issue. In response,
Plaintiff accused Cloninger of plagiarism on a paper she had
co-authored, which automatically resulted in an investigation
of Cloninger's paper.
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.Throughout 2015, Plaintiff took issue
with the classes that he was assigned to teach. In the
summers of 2015 and 2016, Plaintiff's summer class was
cancelled, and he was offered another course to
teach. Plaintiff declined to teach the
29, 2016, Plaintiff filed an amendment to the 2012 EEOC
Charge (the “2016 EEOC Charge”). In the 2016
EEOC Charge, Plaintiff claimed that he was discriminated
against on the basis of sex, national origin, age, and
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 (“Title VII”), the
Age Discrimination in Employment Act (“ADEA”),
Title I of the Americans with Disabilities Act
(“ADA”), and the Texas Commission on Human Rights
Act (“TCHRA”). 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. On January 10, 2018, the
court's recommendation was adopted.
March 9, 2018, the court entered a recommendation that
Plaintiff's request for punitive damages be
dismissed. On March 27, 2018, the court's
recommendation was adopted. On January 18, 2019,
Defendants filed their pending motion for summary
judgment.On February 15, 2019, Plaintiff filed a
response to Defendants' motion for summary
judgment. On February 27, 2019, Defendants filed
their objections and reply to Plaintiff's
Defendants' Objections to Plaintiff's
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.
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)).
object to Plaintiff's attempt to now characterize himself
as Taiwanese rather than Chinese. However, in his
complaint, Plaintiff argues that he was discriminated against
“because of his national origin (i.e.,
Chinese)[.]” 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
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.
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
court found it unnecessary to limit the actionable time
period in ruling on Defendants' motion. Thus,
Defendants' related objections are OVERRULED AS
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.
Summary Judgment Standard
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)).
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).
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.
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).
court will first address Defendants' argument regarding
the timeliness of Plaintiff's lawsuit before turning to
the McDonnell Douglas analysis.
Timeliness of Plaintiff's Lawsuit
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. Plaintiff's lawsuit was filed on
February 10, 2017, which is within ninety days of his receipt
of the right-to-sue letter. Accordingly, Plaintiff's
lawsuit was timely filed.
National Origin and Gender Discrimination
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
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. The only claim that might qualify as an
ultimate employment action is Plaintiff's vague claim of
failure to promote.
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. Again, Plaintiff
conflates his retaliation claims with his discrimination
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.
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.
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.
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,
summarily claims that he “grieved unfair treatment
based on a protected category by Dr. Niroomand and other
deans at UHV[.]” 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. 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.
the court finds that the only protected activity that
Plaintiff engaged in was the filing of his two EEOC charges.
Adverse Employment Action ...