United States District Court, W.D. Texas, San Antonio Division
MEMORANDUM OPINION and ORDER GRANTING CITY OF
WINDCREST'S MOTION FOR SUMMARY JUDGMENT
PULLIAM UNITED STATES DISTRICT JUDGE
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.
AND PROCEDURAL BACKGROUND
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.
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.
10, 2016, 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.
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.
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.
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.
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.” 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)).
“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).
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.
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.
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.
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.
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).
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.
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 &