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DeValentino v. Houston Independent School District

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

January 6, 2020

JESSICA DeVALENTINO, Plaintiff,
v.
HOUSTON INDEPENDENT SCHOOL DISTRICT, Defendant.

          MEMORANDUM AND ORDER

          NANCY F. ATLAS, SENIOR UNITED STATES DISTRICT JUDGE.

         This 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].

         United 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.

         The 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 Summary Judgment.

         I. BACKGROUND

         In 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 female.

         Amponsah-Gilder 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.

         When 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.

         On 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.[1] 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 it.”[2] Id.

         On May 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.

         Plaintiff 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.

         On May 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.

         On May 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.

         On June 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].

         In 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.”[3] 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.

         Also on 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.

         On 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. See id.

         On 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.

         On 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.

         HISD 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 id.

         On 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.

         On 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.

         On February 9, 2018, Plaintiff filed this lawsuit against HISD.[4] 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. ยง ...


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