United States District Court, S.D. Texas, Houston Division
MEMORANDUM AND ORDER
F. ATLAS, SENIOR UNITED STATES DISTRICT JUDGE.
employment case is before the Court on the Motion for Summary
Judgment (“Motion”) [Doc. # 27] filed by
Defendant Houston Independent School District
(“HISD”). Plaintiff, pro se, Jessica
DeValentino filed a Response [Doc. # 28], HISD filed a Reply
[Doc. # 30], and Plaintiff filed a “Reply to
Defendant's Reply” [Doc. # 35]. Additionally, HISD
filed a Brief on Admissible Evidence [Doc. # 38] and Brief on
Causation [Doc. # 39]. Plaintiff responded to each of these
two Briefs [Docs. # 40 and # 41].
States Magistrate Judge Dena Palermo issued a Report and
Recommendation on Defendant's Motion
(“R&R”) [Doc. # 43] on November 13, 2019. In
the R&R, the Magistrate Judge gave clear notice that any
objections must be filed within fourteen days from service of
the R&R. See R&R, p. 27. HISD filed timely
Objections [Doc. # 44] on November 22, 2019. Plaintiff filed
Objections [Doc. # 46] on December 16, 2019, well after the
fourteen-day deadline. In the document entitled
“Objections, ” Plaintiff also responded to
Defendant's objections to the R&R. HISD filed a
Motion to Strike [Doc. # 49] Plaintiff's untimely
objections, and a Reply [Doc. # 50] addressing
Plaintiff's response to its objections. Plaintiff filed a
“Reply to Defendant's Reply” [Doc. # 51],
which relates exclusively to Defendant's objections.
Court has carefully reviewed the full record in this case.
Based on that review and the application of relevant legal
authorities, both those that are binding and those that are
merely persuasive, the Court adopts the Magistrate
Judge's R&R as to the limitations defense and as to
the discrimination claims, but declines to adopt the
Magistrate Judge's R&R as to the retaliation claims.
The Court grants HISD's Motion for
September 2015, Plaintiff was working as an Assessment
Administrator in the Student Assessment Department.
Plaintiff's direct supervisor was Betty Garcia, and Dr.
Leng Fritsche was head of the department. On September 23,
2015, Plaintiff filed a “Workplace Bullying Complaint
Form” alleging that Garcia “frequently and
repeatedly fabricates information” and that Garcia
accused her of “not doing a good job.”
See Workplace Bullying Complaint Form, Exh. 2-A to
Motion. HISD investigated the complaint, conducting
interviews with all witnesses and reviewing documents.
“All of the witnesses stated in the interviews that
they did not witness any situations that qualify as a
workplace bullying.” See Investigation Letter,
Exh. 2-B to Motion. Although the investigation failed to
substantiate Plaintiff's complaint, Fritsche reassigned
Plaintiff to a different supervisor on another team in the
Student Assessment Department. See Id. Specifically,
effective October 1, 2015, Fritsche moved Plaintiff to a team
supervised by Julia Amponsah-Gilder, an African-American
met with Plaintiff and her co-worker, Douglas
“Duane” Dixon, a Caucasian male, on January 26,
2016 and February 2, 2016. At those meetings, Amponsah-Gilder
issued verbal warnings to both Plaintiff and Dixon regarding
their “failure to work collaboratively and their
inadequate work product.” See Affidavit of
Julia Amponsah-Gilder, Exh. 1 to Motion, ¶ 7. On
February 5, 2016, Amponsah-Gilder issued “Verbal
Warning” memos to both employees, documenting the prior
verbal warnings. See Id. Plaintiff began maternity
leave on February 25, 2016.
Plaintiff returned from her maternity leave on April 4, 2016,
she assumed a new assignment on the Online Assessment team
under the supervision of Diana Bidulescu, a Caucasian female.
Noe Cervantes and Alex Mamantoff were also members of the
Online Assessment team.
April 6, 2016, Plaintiff advised Bidulescu that she planned
to attend training on April 20, 2016, and planned to take
vacation on June 15-16 and June 20-22, 2016. See
Email Chain, Exh. 2-C to Motion. Bidulescu responded that the
April 20 training needed to be cancelled because it was
during the STAAR testing, and that the June 20-22 vacation
dates also fell within STARR testing dates, which were
“all hands on deck” dates. See Id.
Bidulescu asked Plaintiff to “refer to the testing
calendar for leave planning.” See Id. The next
day, April 7, 2016, Plaintiff filed a formal complaint
against Bidulescu complaining that Bidulescu had scolded her
for sending an email to someone outside the department
without prior approval, had chastised her for attending a
training program, and had denied a part of her requested
vacation time. See HISD Dispute Resolution Form,
Exh. 2-D to Motion. Plaintiff complained that the denial of
her requested vacation time was “unacceptable”
because “other employees were out last summer.”
See Id. Plaintiff stated, “[t]he slightest
thing I do is blown out of proportion because I am
black” and that she was “tired of
4, 2016, Bidulescu issued a memorandum regarding
Plaintiff's conduct during a meeting on April 27, 2016.
See May 4, 2016 Memorandum, Exh. 2-F to Motion.
During the meeting, Bidulescu expressed concern that
Plaintiff was “trying to change the tasks assigned to
[her]” and was failing to comply with HISD policies.
See Id. Plaintiff responded that she thought it was
“more efficient to do the tasks differently without
informing” her supervisor, and that it was
“ok” with her if Bidulescu wanted “to make
wrong decisions.” Id.
then filed another Workplace Bullying Complaint Form, this
one against Bidulescu. See ECF Doc. 27-2, p. 93. The
Complaint Form identifies “05/4/2016” as the
“Date Filed.” It is stamped
“Received” on August 3, 2016, and references
attachments, including a Memorandum from Bidulescu dated May
12, 2016. See id., pp. 93, 95. In the complaint,
Plaintiff states that Bidulescu was abusing her position to
harass Plaintiff and to attack her professional conduct.
See Id. There is no allegation that any
“bullying” was based on Plaintiff's race.
9, 2016, Bidulescu issued a memorandum regarding
Plaintiff's failure to complete tasks in a timely manner
and failure to follow instructions. See May 9, 2016
Memorandum, Exh. 2-G to Motion. In the May 9, 2016
Memorandum, Bidulescu gave Plaintiff specific directives for
improvement. See id.
12, 2016, Bidulescu issued a memorandum regarding
Plaintiff's unprofessional conduct during a meeting with
Fritsche and Amponsah-Gilder on May 4, 2016. See May
12, 2016 Memorandum, Exh. 2-H to Motion. Specifically, the
Memorandum stated that Plaintiff was argumentative, curt and
unprofessional during the meeting, as noted by
Amponsah-Gilder. See Id. Bidulescu noted that
Plaintiff had failed to comply with the directives for
improvement, and gave Plaintiff three additional directives
regarding professional conduct. See id.
11, 2016, Plaintiff filed a Charge of Discrimination
(“Charge”) with the Equal Employment Opportunity
Commission (“EEOC”). See ECF Doc. #
27-2, p. 171. In the EEOC Charge, Plaintiff stated that she
had been subjected to race discrimination and retaliation.
See Id. On November 16, 2017, the EEOC issued a
Notice of Right to Sue in connection with this Charge.
See Exh. 1 to Complaint [Doc. # 1].
early August 2016, Bidulescu completed Plaintiff's
written performance review. See End of Year Employee
Evaluation, Exh. 2-I to Motion. In the final appraisal, on a
rating system of 1 (ineffective) through 4 (highly
effective), Bidulescu rated Plaintiff mostly at levels 1 and
2 (developing), with a level 3 rating (effective) for
“Customer Focus” and “Standard
Expectations, ” defined as “Employee dresses in a
manner that is appropriate for the job assignment, complies
with district/department policies, is punctual for scheduled
meetings, and arrives to work on time.” See Id.
On August 3, 2016, Bidulescu discussed the performance review
with Plaintiff, who “refused to sign the appraisal and
stated that she will not acknowledge it online either, as she
sent it to HR.” See id.
August 3, 2016, Plaintiff filed a Dispute Resolution Form
complaining about her appraisal. See Dispute
Resolution Form, ECF Doc. # 27-2, p. 99. Plaintiff cited
various “federal anti-discrimination laws, ”
expressed her disagreement with Bidulescu's ratings, and
requested a level 4 rating in every category. See
Id. at 98-103.
August 5, 2016, Plaintiff was placed on a Prescriptive Plan
for Assistance (“PPA”) until September 2, 2016.
See PPA, Exh. 2-J to Motion. The PPA identified
three specific areas in which Plaintiff's work needed
improvement: quality of materials; timeliness and team work;
and organization. See Id. On August 19, 2016,
Bidulescu conducted a PPA “check-in” meeting with
Plaintiff. See Conference Summary, Exh. 2-K to
Motion. Bidulescu identified several areas where Plaintiff
was not meeting the goals of the PPA. See Id. On
September 2, 2016, Bidulescu conducted a second
“check-in” meeting with Plaintiff. See
Conference Summary, Exh. 2-L to Motion. Again, Bidulescu
identified several PPA goals that Plaintiff had not met.
September 27, 2016, Bidulescu and Fritsche met with Plaintiff
to review their concerns regarding her job performance.
See Conference for the Record Summary, Exh. 2-M to
Motion. Bidulescu identified areas in which Plaintiff failed
to meet the PPA goals. See Id. Bidulescu recommended
that Plaintiff's employment with HISD be terminated.
See Id. On September 28, 2016, Plaintiff filed a
grievance, dated September 27, 2016, challenging
Bidulescu's decision to recommend termination.
See ECF Doc. # 27-2, pp. 107-08. In the formal
grievance, Plaintiff did not mention race discrimination or
retaliation. See id.
September 29, 2016, Bidulescu sent Fritsche a memorandum
noting that Bidulescu had discussed Plaintiff's
“poor performance and failure to make progress on her
prescriptive plan of assistance.” See
September 29, 2016 Memorandum, Exh. 1-F to Motion. In the
Memorandum, Bidulescu stated that Plaintiff's performance
had not improved and, “[t]herefore, ” she
recommended that Plaintiff's employment be terminated.
See Id. Fritsche signed the Memorandum, approving
Bidulescu's recommendation. See id.
sent Plaintiff a letter dated October 7, 2016, advising her
that her employment was terminated effective September 27,
2016. See October 7, 2016 Letter, Exh. 2-N to
Motion. In the letter, Plaintiff was advised that the
termination of her employment was based on unsatisfactory job
performance, with specific examples provided. See
January 25, 2017, following a hearing on Plaintiff's
consolidated grievances, independent Administrative Hearing
Officer Thelma Elizalde issued a Level Two Grievance Decision
(“Grievance Decision”), Exh. 2-Q to Motion.
Hearing Officer Elizalde concluded that “it was poor
attitude and performance, a failure to follow directives, and
lack of respect toward her supervisor that prevented
[Plaintiff] from performing at her most competent level,
” and that Plaintiff's “termination is based
solely on unsatisfactory job performance.” See
Id. at 8-9. The Hearing Officer noted that Plaintiff
“received a significant amount of coaching and feedback
during her employment and did not improve.”
Id. at 9.
February 27, 2017, Plaintiff filed a second Charge of
Discrimination with the EEOC. See Charge of
Discrimination, Exh. 2-T to Motion. Plaintiff stated that her
termination on September 27, 2016, was the result of race
discrimination and retaliation. See Id. On March 28,
2018, after Plaintiff filed this lawsuit, the EEOC issued a
Dismissal and Notice of Rights in connection with this second
Charge of Discrimination. See Exh. 2-U to Motion.
February 9, 2018, Plaintiff filed this lawsuit against
HISD. In a Memorandum and Order [Doc. # 9]
entered April 12, 2018, the Court dismissed all claims except
the race discrimination and retaliation claims based on the
termination of Plaintiff's employment with HISD. By Order
[Doc. # 23] entered March 4, 2019, the Court referred
dispositive motions to Magistrate Judge Palermo pursuant to
28 U.S.C. § ...