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Newbury v. City of Windcrest

United States District Court, W.D. Texas, San Antonio Division

January 7, 2020




         Before the Court is Defendant City of Windcrest's (hereinafter “The City”) Motion for Summary Judgment. The City seeks summary judgment on Plaintiff Brandy Newbury's causes of action of sexual harassment, gender discrimination, retaliation, and constructive discharge under Title VII of the Civil Rights Act of 1964 and Chapter 21 of the Texas Labor Code, Newbury's cause of action asserting violation of 42 U.S.C. § 1983, and Newbury's cause of action for Intentional Infliction of Emotional Distress. ECF No. 28. Newbury responded to the motion. ECF No. 32. After due consideration, the Court concludes the City's Motion for Summary Judgment shall be GRANTED on all causes of action.


         This dispute arises out of Newbury's employment with the Windcrest Police Department. The parties filed a Stipulation setting forth the basic underlying undisputed facts that Newbury began working for the Windcrest Police Department as a police officer on March 1, 2016. In this position, Newbury was an at will employee with a one-year probationary period. ECF No. 26.

         Pursuant to the facts asserted in her Original Complaint, this action arises from an incident that occurred on April 16, 2016, between Newbury and Officer Blanca Jaime, another female officer who did not have supervisory authority over Newbury. ECF No. 1. Newbury asserts she and Officer Jamie had a disagreement regarding the grammar Newbury used in an incident report. Id. As a result of the disagreement and Newbury's refusal to change the grammar in her incident report, Officer Jaime screamed at her and humiliated her in front of colleagues. Id. The exchange resulted in Newbury feeling compelled to change her incident report to satisfy Officer Jaime. Id. Newbury asserts in her Original Complaint that, again, on April 21, 2016, Officer Jaime and Officer Hernandez humiliated her by holding a cell phone in her face and asked numerous questions regarding her presence in the field without her Field Training Officer. Id.

         On July 10, 2016[1], Newbury filed a formal internal grievance against Officer Jaime. Id.; ECF No. 1. Newbury cited these two incidents, as well as allegations that from the beginning of her employment, Officer Jaime was rude and dismissive to her, would ignore her and was jealous of Newbury's assignment as a trainee with Officer Hernandez. See ECF No. 1. Newbury alleged Officer Jaime discriminated against her based upon gender because Officer Jaime did not treat other male officers in this manner. See id.

         Because Newbury's formal complaint asserted gender discrimination, the City retained the law firm of Holland & Holland to conduct an external investigation of Newbury's allegations against Officer Jaime. ECF Nos. 1, 26. On August 2, 2016, Attorney Inez McBride issued a report containing her findings and the conclusion that any allegations of gender-based, same-sex discrimination were unsubstantiated. ECF Nos. 1, 26. The parties stipulate Newbury continued her employment with the Windcrest Police Department until January 27, 2017, when she resigned. ECF No. 26.

         Newbury filed this action asserting causes of action for gender discrimination, sexual harassment which created a hostile work environment, retaliation, constructive discharge, intentional infliction of emotional distress and violation of her Fourth and Fourteen Amendment right to privacy in violation of 42 U.S.C. § 1983. Newbury supports her causes of action with these same allegations pertaining to incidents with Officer Jaime. In addition, Newbury asserts that on November 1, 2016, she made a complaint and requested an internal investigation alleging Officer Grelle was following her to catch her working improper off-duty side jobs. ECF No. 1. Lt. Lee told her an internal investigation would be opened; however, on December 29, 2016, Newbury was assigned Officer Grelle as a partner. Id. Upon her complaint to Lt. Lee regarding this assignment, he told Newbury that an internal investigation had not been conducted based upon those allegations, and one would not be. Id.

         Newbury filed this action on January 31, 2017, and the parties stipulate she exhausted her administrative remedies. ECF Nos. 1, 26. The matter is now before the Court on the City's Motion for Summary Judgment.


         A court must “grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”[2] Fed.R.Civ.P. 56(a). “As to materiality, the substantive law will identify which facts are material, ” and a fact is “material” only if it “might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute over a material fact becomes “genuine” within the meaning of Rule 56 when “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. Because there must be a genuine dispute of material fact, “the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment.” Id. at 247-48. There is no genuine dispute for trial when “the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party.” Scott v. Harris, 550 U.S. 372, 380 (2007) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)).

         The “party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). “When a party moves for summary judgment on claims on which the opposing parties will bear the burden of proof at trial, the moving party can meet its summary judgment obligation by pointing the court to the absence of admissible evidence to support the nonmovants' claims.” Armas v. St. Augustine Old Roman Catholic Church, No. 3:17-CV-2383-D, 2019 WL 2929616, at *2 (N.D. Tex. July 8, 2019) (citing Celotex Corp., 477 U.S. at 325).

         In determining the merits of a motion for summary judgment, a court must view all facts and reasonable inferences drawn from the record “in the light most favorable to the party opposing the motion.” Heinsohn v. Carabin & Shaw, P.C., 832 F.3d 224, 234 (5th Cir. 2016) (citation omitted). Further, a court “may not make credibility determinations or weigh the evidence.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000); Anderson, 477 U.S. at 254-55.

         If the movant carries its initial burden, the burden shifts to the nonmovant to present competent summary judgment evidence showing the existence of a genuine dispute of material fact. Matsushita, 475 U.S. at 586-87; see also Fed. R. Civ. P. 56(c). Mere conclusory allegations are not competent summary judgment evidence, and thus are insufficient to defeat a motion for summary judgment. Eason v. Thaler, 73 F.3d 1322, 1325 (5th Cir.1996). “Unsubstantiated assertions, improbable inferences, and unsupported speculation are not sufficient to defeat a motion for summary judgment.” Heinsohn, 832 F.3d at 234 (citation omitted). The party opposing summary judgment is required to identify specific evidence in the record and to articulate the precise manner in which that evidence supports its claim. Ragas v. Tennessee Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998). Rule 56 does not impose a duty on the court to “sift through the record in search of evidence” to support the nonmovant's opposition to the motion for summary judgment. Id.; see also RSR Corp. v. Int'l Ins. Co., 612 F.3d 851, 857 (5th Cir. 2010). If the nonmoving party fails to make a showing sufficient to establish the existence of an element essential to its case and on which it will bear the burden of proof at trial, summary judgment must be granted. Celotex, 477 U.S. at 322-23.


         The City asserts it is entitled to summary judgment on all of Newbury's causes of action as a matter of law based upon the following grounds: (1) Newbury cannot establish a prima facie case of sexual harassment (hostile work environment) or gender discrimination in violation of Title VII because she cannot show Officer Jaime's or the City's actions were based upon Newbury's gender; (2) Newbury cannot establish a prima facie case of retaliation in violation of Title VII because she cannot show any causal connection between her protected activity and any alleged adverse action; (3) Newbury cannot establish a prima facie case to show she was constructively discharged because her allegations do not rise to the level of pervasiveness and severity to constitute or require her resignation; (4) Newbury cannot establish the City committed a constitutional violation to support her cause of action under 42 U.S.C § 1983; and (5) The City is immune from suit for Intentional Infliction of Emotional Distress. ECF. No. 28.

         Burden of Proof

         Title VII prohibits employers from intentionally discriminating against any individual with respect to compensation, terms, conditions or privileges of employment based on the individual's gender or other protected class. 42 U.S.C. § 2000e-2(a)(1); Roberson v. Alltel Info. Servs., 373 F.3d 647, 651 (5th Cir. 2004). Title VII also prohibits employers from retaliating against an employee for engaging in protected conduct, such as filing a complaint regarding discrimination or sexual harassment. 42 U.S.C. § 2000e-3(a).

         Intentional discrimination can be established through either direct or circumstantial evidence. Wallace v. Methodist Hosp. Sys., 271 F.3d 212, 219 (5th Cir. 2001). When, as in this case, there is no direct evidence of unlawful discrimination or retaliation, a plaintiff must prove any such causes of action using circumstantial (or indirect) evidence pursuant to the burden-shifting framework set forth in McDonnell Douglas Corp v. Green, 411 U.S. 792, 802 (1973). Alvarado v. Tex. Rangers, 492 F.3d 605, 611 (5th Cir. 2007). To survive a defendant's motion for summary judgment under the McDonnell Douglas framework, prior to the assignment of summary judgment burdens of proof, a plaintiff must, first, establish a prima facie case of the asserted discrimination and retaliation. McCoy v. City of Shreveport, 492 F.3d 551, 556 (5th Cir. 2007). If satisfied, the plaintiff creates a presumption of intentional discrimination. Id. The burden, then, shifts to the employer to articulate a legitimate, nondiscriminatory reason for its actions. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 254-56 (1981). If the employer sustains its burden, the presumption of intentional discrimination dissipates, and the burden shifts back to the plaintiff. McCoy, 492 F.3d at 556. At this final stage, to survive summary judgment, a plaintiff must offer sufficient evidence to create a genuine dispute of material fact that either: (1) the employer's proffered reason is not true but is instead a pretext for discrimination; or (2) the employer's reason, while true, is not the only reason for its conduct, and another “motivating factor” is the plaintiff's protected characteristic. Burrell v. Dr. Pepper/Seven Up Bottling Group, Inc., 482 F.3d 408, 411-12 (5th Cir. 2007); McCoy, 492 F.3d at 556; Williams v. Time Warner, 98 F.3d 179, 181 (5th Cir. 1996).

         Unsubstantiated assertions and conclusory allegations of discrimination are not competent summary judgment evidence, and therefore, are not sufficient to support a party's burden at any stage. Fed.R.Civ.P. 56(e); Ramsey v. Henderson, 286 F.3d 264, 269 (5th Cir. 2002); Ragas, 136 F.3d at 458.

         1. Sexual Harassment

         Title VII's ban on intentionally discriminatory employment practices extends to gender-based discrimination that creates a hostile or abusive work environment, generally referred to as “sexual harassment”. Meritor Sav. Bank, FSB v. Vinson,477 U.S. 57, 66 (1986); Cherry v. Shaw Coastal, Inc., 668 F.3d 182, 188 (5th Cir. 2012)(citing Oncale v. Sundowner Offshore Servs., 523 U.S. 75, 81 (1998)). An employer violates Title VII when the employer allows the workplace to be “permeated with discriminatory intimidation, ridicule, and insult ... that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment[.]” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (internal quotations and citations omitted). There are two broad categories of sexual harassment discriminatory practice: (1) quid pro quo; and (2) hostile work environment. Giddens v. Cmty. Educ. Centers, Inc., 540 Fed.Appx. 381, 387 (5th Cir. 2013). If a plaintiff suffered a tangible employment action, the suit is a “quid pro quo” action. Casiano v. AT & T ...

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