Opinion
Civil No. 3:02-CV-1340-H.
June 24, 2003.
MEMORANDUM OPINION AND ORDER
Before the Court are Defendants' Motion for Summary Judgment, filed May 2, 2003, Plaintiffs' Response, filed June 5, 2003, and Defendants' Reply, filed June 12, 2003.
I. Background
Plaintiffs Cedric Davis ("Davis") and Rufus Johnson ("Johnson") filed this lawsuit on June 26, 2002. On January 28, 2003, Plaintiffs filed their Second Amended Complaint, adding Defendant Juan Rodriguez ("Rodriguez") as a party. This case is currently set for trial on the July, 2003 docket. This is not, however, the first lawsuit that Plaintiffs have filed against Defendants Dallas Area Rapid Transit ("DART") and Rodriguez; Davis and Johnson have both individually filed lawsuits against DART in the past, and the two Plaintiffs have also previously filed a lawsuit collectively against both Defendants in this case.
Davis v. DART, DV00-08807-J, filed February 21, 2001 (hereinafter the "8807 case") and Johnson v. DART, 3:00-CV-2575-M, (hereinafter the "2575 case") filed March 12, 2001 in state court and removed to the Northern District of Texas.
Davis and Johnson v. DART and Rodriguez, 3:01-CV-2595-M, filed November 16, 2001 in state court and removed to the Northern District of Texas (hereinafter the "2595 case").
Plaintiffs bring claims under Title VII and 42 U.S.C. § 1981(a) against DART. (Pl.'s Second Am. Compl. at 4.) Plaintiffs bring claims under 42 U.S.C. § 1983 and 42 U.S.C. § 1988 against Defendant Rodriguez for violations of the First and Fourteenth Amendments. Id. Defendants now seek summary judgment, claiming that: (1) any of Plaintiffs' claims involving conduct pre-dating February of 2002 are barred by resjudicata; and (2) Plaintiffs cannot establish prima facie cases on any of their claims.
42 U.S.C. § 1988 is an attorneys' fee provision and does not provide an independent basis for federal jurisdiction.
Defendants argue that resjudicata bars claims by Johnson which involve activity pre-dating February 1, 2002, and bar claims by Davis pre-dating February 21, 2002.
II. Standard of Review
Summary judgment is appropriate where the facts and law as represented in the pleadings, affidavits and other summary judgment evidence show that no reasonable trier of fact could find for the nonmoving party as to any material fact. FED. R. Civ. P. 56; Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888 (1990); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 323-25 (1986); Innovative Database Sys. v. Morales, 990 F.2d 217 (5th Cir. 1993). "The moving party bears the initial burden of identifying those portions of the pleadings and discovery in the record that it believes demonstrate the absence of a genuine issue of material fact, but is not required to negate elements of the nonmoving party's case." Lynch Props., Inc. v. Potomac Ins. Co. of III., 140 F.3d 622, 625 (5th Cir. 1998) (citing Celotex, 477 U.S. at 322-25). If the movant fails to meet its initial burden, the motion must be denied, regardless of the nonmovant's response. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
If the movant does meet its burden, the nonmovant must go beyond the pleadings and designate specific facts showing that a genuine issue of material fact exists for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Edwards v. Your Credit, Inc., 148 F.3d 427, 431 (5th Cir. 1998). A party opposing summary judgment may not rest on mere conclusory allegations or denials in its pleadings unsupported by specific facts presented in affidavits opposing the motion for summary judgment. FED. R. Civ. P. 56(e); Lujan, 497 U.S. at 888; Hightower v. Texas Hosp. Ass'n., 65 F.3d 443, 447 (5th Cir. 1995).
In determining whether genuine issues of fact exist, "[f]actual controversies are construed in the light most favorable to the nonmovant, but only if both parties have introduced evidence showing that a controversy exists." Lynch, 140 F.3d at 625; see also Eastman Kodak v. Image Technical Servs., 504 U.S. 451 (1992). However, in the absence of any proof, the Court will not assume that the non-moving party could or would prove the necessary facts. Lynch, 140 F.3d at 625. A party must do more than simply show some "metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586. "If 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." Friou v. Phillips Petroleum Co., 948 F.2d 972, 974 (5th Cir. 1991).
III. Discussion
A. Res Judicata
Defendants argue that the doctrine of resjudicata bars Plaintiffs from bringing the claims asserted in this action. Resjudicata bars all claims that were brought, or could have been brought, in a prior action. Ellis v. AMEX Life Ins. Co., 211 F.3d 935, 938 (5th Cir. 2000). The test for determining whether a claim is barred by the doctrine involves four factors: (1) the parties must be identical in both suits; (2) the prior judgment must have been rendered by a court of competent jurisdiction; (3) there must have been a prior judgment on the merits; and (4) the same cause of action must be involved in both cases. Nilsen v. City of Moss Point, 701 F.2d 556, 559 (5th Cir. 1983). The Fifth Circuit applies a transactional test to determine whether the same causes of action are involved in both cases; the critical issue is whether the two actions are based on the same nucleus of operative facts. Ellis v. AMEX Life Ins. Co., 211 F.3d 935, 938 (5th Cir. 2000).
In this case, only the final element is contested. Defendants argue that the portions of this case that relate to activities pre-dating February 2002 arise out of the same nucleus of operative facts as the 2595 case, and as such should be barred by res judicata. Furthermore, the actions giving rise to two of the EEOC complaints upon which Plaintiffs now base their Title VII claims had already occurred at the time they filed the 2595 action. Having reviewed the Complaint in the 2595 action as well as Plaintiffs' Second Amended Complaint in this case, the Court is of the opinion that there is substantial overlap of the factual bases in the two complaints with respect to Plaintiffs' claims of harassment pre-dating December 17, 2001 as well as the specific actions giving rise to the two EEOC complaints filed by Plaintiffs on July 13, 2001. While the Second Amended Complaint currently before the Court sets out the facts in more detail than the Complaint in the 2595 action, it is clear that the two involve a common nucleus of operative fact. The 2595 Complaint, filed in November 2001, states that Plaintiffs "were not promoted because they continue to publicly speak out against race discrimination." The EEOC complaints filed July 13, 2001 address alleged racial discrimination and retaliation related to Plaintiffs' reports made at a May 8, 2001 DART board meeting. Moreover, the Complaints in the 2595 case, the 2575 case, and the 8807 cases all allege continuing harassment by Plaintiffs' supervisors based on race and retaliation for filing previous EEOC complaints. The overlap of factual bases is too significant to ignore.
EEOC Charges 310A12234 and 310A2236 were both filed June 13, 2001.
Plaintiffs argue that even if the claims in this suit overlap with claims brought in the 2595 action, the application of res judicata would be inappropriate here because at the time they filed the 2595 action they had not yet received their "right to sue" letters from the EEOC. This argument is unavailing. The Fifth Circuit has not yet addressed the precise issue presented here; whether Plaintiffs claims under Title VII may be barred by res judicata if at the time of the prior suit a "right to sue" letter, required for a federal court to have jurisdiction in the case, has not yet been received by Plaintiffs. The Second Circuit has, however, addressed this issue and answered the question in the affirmative. See Woods v. Dunlop Tire Corp., 972 F.2d 36 (2d. Cir. 1992). In Woods, the Second Circuit held that resjudicata barred Title VII claims arising out of the same transaction or occurrence as a previously filed Labor Management Relations Act ("LMRA") claim even though the plaintiff had not yet received a right to sue letter from the EEOC at the time she filed the LMRA claim. In reaching that conclusion the Court held that "the language and policy of Title VII do not undercut the application of res judicata, and we see no reason militating against application of well-settled claim preclusion principles." Id. at 39. This Court agrees with that analysis. While Title VII requires exhaustion of administrative remedies before a federal claim may be brought, there were options available to Plaintiffs other than simply choosing between their claims. Plaintiffs could have filed the 2595 suit and requested a stay pending the conclusion of the administrative proceedings on the two EEOC complaints at issue in this discussion, or Plaintiffs could have delayed filing the first suit until the administrative proceedings were completed. What Plaintiffs could not do is split their causes of action and file separate suits seeking separate recoveries for the same injuries. In short, Plaintiffs' claims that are unrelated to their December 17, 2001 application for promotion to the rank of lieutenant are all barred by res judicata. The Court will now address Plaintiffs' claims related to their application for promotion to the rank of lieutenant.
B. Promotion to Lieutenant
The only factual basis for Plaintiffs' claims that survives res judicata analysis relates to Plaintiffs' attempts to secure promotions to the rank of lieutenant. The Court will address each claim independently.
Claims against DART
1. Title VII
Plaintiffs argue that they were subjected to racial discrimination, retaliation, and a hostile work environment. When a Plaintiff brings only circumstantial evidence of discrimination the burden-shifting analysis set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973) applies. The McDonnell Douglas framework requires that Plaintiffs establish a prima facie case of discrimination to survive summary judgment. Patel v. Midland Mem'l Hosp. and Med. Ctr., 298 F.3d 333, 342 (5th Cir. 2002). If it is established, the prima facie case shifts the burden to Defendants to show a legitimate, non-discriminatory reason for its employment decision. Id. If the Defendants present such a reason, the inference disappears and Plaintiffs must offer evidence that the proffered reason is a pretext for discrimination.
a. Race Discrimination
To present a prima facie case of race discrimination, Plaintiffs must show that (1) they belong to a protected group; (2) they were qualified for the position they sought; (3) despite their qualifications, they were rejected; and (4) after the rejection, the position stayed open and the employer continued to seek applicants from persons of Plaintiffs' qualifications. Perez v. Region 20 Educ. Serv. Ctr., 307 F.3d 318, 324 (5th Cir. 2002). Defendants contest the second, third, and fourth elements. (Defs.' Reply at 7.)
The first issue before the Court is job qualification. Defendants assert that Plaintiffs did not meet the job qualifications for the position of lieutenant at the time that they nominated t themselves for that position. (Aff. of Yolanda Ross, Defs.' App. at 91.) Furthermore, Plaintiffs do not contest the fact that they did not meet the minimum posted requirements for the position of lieutenant. Instead, Plaintiffs appear to want to skip ahead to a showing of pretext. ( See Pis.' Response at 19 stating "Defendants manipulated the promotion criteria to prevent the Plaintiffs' advancement.") Until Plaintiff has made a prima facie case, however, pretext is not relevant. All three of the consecutive job postings require seven years of peace officer experience plus a certain period of time to be spent in specific supervisory positions, either in civil peacekeeping or military peacekeeping. (Pls.' App. at 24-25, 30-33.) The first posting required "seven (7) years peace officer experience to include a minimum of one (1) year as sergeant." (Pls.' App. at 24-25.) The second two postings required "seven (7) years full-time experience as a Texas Peace Officer to include a minimum of one year supervisory experience at the rank of Sergeant or higher in civilian police work or any leadership experience (E-6 or higher) in the military." (Pis.' Ex. at 30-33.) Plaintiffs do not meet either the initial requirement, because they have not served as sergeants, or the secondary requirement, because they do not have sufficient military experience at the required level. Plaintiffs point to language in the job postings which stated "an equivalent combination of related education and experience may be substituted for the above stated minimums" and argue that the minimum requirements were interpreted to exclude them from consideration. (Pls.' App. at 26.) It is clear from the evidence before the Court that DART used a formula combining total work experience and education as one minimum requirement, as well as having a separate requirement of 1 year of experience as a sergeant or as an E-6 in the military. (Defs.' App. at 94.) Plaintiffs argue that this method unfairly excluded them and was done to ensure that certain white candidates would be eligible for promotion. Plaintiffs also argue that "equivalent combination" was interpreted differently in different situations to allow some people to be promoted while denying promotions to others. The concept of equivalency is not clearly defined in the evidence before the Court. It is clear how equivalency was determined in this instance, but not whether that method was used consistently in all cases.
The job description required seven (7) years of full-time Texas peace officer experience as well as a bachelor's degree in criminal justice, law enforcement or a related field. DART assigned a value of 1 year to each 15 hours completed toward a degree, which resulted in a standard four-year bachelor's program being "worth" eight (8) years of educational experience. (Pls.' App. at 29.) If a candidate's education and work experience totaled 15 years under this formula, then they met the requirements even if they had less than the eight (8) years of education or seven (7) years of peace officer experience explicitly required by the position notice. (Aff. of Yolanda Ross; Defs.' App. at 91.).
For example, applicant Jeffrey Casey ("Casey") had exactly 15 years of "total experience" including work and educational experiences and had spent exactly 1 year in the position of sergeant. Casey is white, and was one of two applicants promoted to the rank of lieutenant. (Defs.' App. at 94, 86.).
Plaintiff Davis asserts that Assistant Police Chief Spiller was improperly hired by determining his "equivalency" in a different way than was applied here. Davis states that "[m]ilitary experience means something only when Chief Rodriguez and DART wishes (sic) to apply it to achieve the discrimination (sic) result Rodriguez or DART wishes (sic) to achieve." (Dec. of Davis; Pls.' App. at 13.) However, Davis does not assert that Spiller was similarly situated. He was applying for a different position, the minimum requirements of which are not before the Court. Davis argues that Spiller's prior military experience was weighted more heavily, and that he was given the job with no "Texas peace officer" experience. However, that is also not the same situation currently before the Court. Plaintiffs do not assert that their military experience was not properly considered to reach their "total experience" requirements. Instead, Plaintiffs argue that the one (1) year as a sergeant or E-6 requirement is unfairly discriminatory. The two situations are not comparable.
Assuming without deciding that Plaintiffs can establish a prima facie case here, there would still remain the issue of pretext to be decided. Defendants have presented a non-racial motivation for denying Plaintiffs access to the lieutenant materials and exam-that there was a one-year sergeant or E-6 requirement. Plaintiffs would then have to establish that this reason was merely a pretext for racial discrimination. There is no competent summary judgment evidence to support that the stated reason was pretextual. Plaintiffs were not the only candidates excluded from application. Of the seven applicants excluded from testing, three were White. (Aff. of Yolanda Ross; Defs.' App. at 92.) Furthermore, the screener of the applications was also African American. Id. at 90. Plaintiffs have failed to meet their burden of proof on the issue of race discrimination under Title VII.
b. Retaliation
To prove a prima facie case of retaliation, Plaintiffs must show that (1) they engaged in an activity protected by Title VII; (2) that an adverse employment action occurred; and (3) that a causal link existed between the protected activity and the adverse employment action. Banks v. E. Baton Rouge Parish Sch. Bd., 320 F.3d 570, 575 (5th Cir. 2003). It is clear in this case that Plaintiffs engaged in protected activity when they filed their EEOC complaints. Defendants contest that Plaintiffs suffered an adverse employment action that would constitute an "ultimate employment decision" as is required in this Circuit. Dollis v. Rubin, 77 F.3d 777, 781-2 (5th Cir. 1995). The facts presented in this case are not precisely the same as those in the Dollis case. In Dollis the plaintiff sought a "desk audit" that might have resulted in a re-classification of her job at a higher pay grade. Id. at 779. The Fifth Circuit held that "denial of a desk audit is not the type of ultimate employment action that Title VII was intended to address." Id. at 782. Here, Plaintiffs submitted applications for the position of lieutenant. After a preliminary review of those applications by Yolanda Ross ("Ross"), an African American employment recruiter for DART, the Plaintiffs were found not to meet the minimum experience requirements for the position. (Aff. of Ross; Defs.' App. at 91-2.) Five other applicants were also found not to meet the minimum experience requirements, three of those applicants were African American and two were White. Id. On the basis of this preliminary assessment, Plaintiffs and the other five applicants were denied access to study materials and the ability to take the required written exam. Plaintiffs argue that this decision was made in retaliation for their previously-filed EEOC complaints and was, in effect, a denial of a promotion. Defendants argue that the denial of access to study materials and the exam were decisions that only "limited an employee's opportunities for promotion" which would not constitute an adverse employment action under Title VII. See Banks v. E. Baton Rouge Parish Sch. Bd., 320 F.3d 570, 575 (5th Cir. 2003). Whether the denial of test materials and access to the test constitutes an adverse employment action is close question. The Court finds that the denial of test materials and access to the test required for promotion constitutes denial of the opportunity for promotion, rather than the actual denial of a promotion. As such, Plaintiffs have not alleged an adverse employment action that would constitute an ultimate employment decision and have failed to adequately establish a prima facie case of retaliation under Title VII.
Moreover, whether or not the denial constituted an adverse employment action, Plaintiffs would still be required to show a causal link between their protected activity, filing EEOC complaints, and their exclusion from testing. To prove a causal link, Plaintiffs must show that the person making the adverse employment decision was aware of the protected activity. Manning v. Chevron Chem. Co., 2003 WL 21245963, *8 (5th Cir. 2003). In this case, Ross made the determinations of who was qualified to proceed to the testing phase of the application process. There is no summary judgment evidence before the Court to suggest that Ross was aware of Plaintiffs' prior EEOC complaints. Plaintiffs have failed to establish a causal link between protected activity and their failure to be promoted. As such they have failed to establish a prima facie case of retaliation.
c. Hostile Work Environment
There are five elements of a prima facie case of hostile work environment under Title VII: (1) the employee belongs to a protected class; (2) the employee was subjected to unwelcome harassment; (3) the harassment complained of was based on race; (4) the harassment complained of affected a term, condition, or privilege of employment; and (5) the employer knew or should have known of the harassment in question and failed to take prompt remedial action. Felton v. Polles, 315 F.3d 470, 484 (5th Cir. 2002). Having excluded all of Plaintiffs' claims that are unrelated to the application for lieutenant, the Court need not address the issue of hostile work environment at this time. All of Plaintiffs' allegations related to harassment are barred by resjudicata.
2. § 1981
a. Race Discrimination
The summary judgment test for race discrimination under § 1981 is also the same as that under Title VII. Patel v. Midland Mem. Hosp. and Med. Ctr., 298 F.3d 333, 342 (5th Cir. 2002). Having previously held that Plaintiffs' Title VII race discrimination claims fail, this claim must also fail.
b. Retaliation
The elements that must be shown to establish a prima facie case for retaliation under § 1981 are identical to those that must be established under Title VII. Foley v. Univ. of Houston System, 324 F.3d 310, 316 (5th Cir. 2003). Having held that Plaintiffs did not meet their burden on their Title VII retaliation claims, Plaintiffs have likewise failed to meet their burden as to retaliation under § 1981.
Claims against Rodriguez
Plaintiffs bring a claim under § 1983 for violations of the First and Fourteenth Amendments against Defendant Rodriguez in his individual and official capacities. See Pls.' Second Am. Compl. at 4.
1. Race Discrimination
The summary judgment test for race discrimination under § 1983 is the same as that under Title VII. Patel v. Midland Mem. Hosp. and Med. Ctr., 298 F.3d 333, 342 (5th Cir. 2002). Having previously held that Plaintiffs' Title VII race discrimination claims fail, this claim must also fail.
2. Retaliation
To establish a prima facie case of retaliation under § 1983 Plaintiffs must show: (1) that they suffered an adverse employment action; (2) as a result of speech involving a matter of public concern; (3) that Plaintiffs' interest in commenting on a matter of public concern outweighed Defendants' interest in promoting efficiency; and (4) the adverse employment action was motivated by the Plaintiffs' protected speech. Foley v. University of Houston System, 324 F.3d 310, 317 (5th Cir. 2003).
The definitions of adverse employment actions under § 1983 is broader than that under Title VII. Banks v. E. Baton Rouge Parish School Bd., 320 F.3d 570, 580 (5th Cir. 2003). For example, reprimands, disciplinary filings, and transfers "equivalent to demotions" would not constitute ultimate employment actions under Title VII, but are considered adverse employment actions under § 1983. Id. The proposed adverse employment action in this case is the Defendants' denial of study materials and access to the exam required for promotion to the rank of lieutenant. The Court has already held that the denial of study materials and access to the exam constitute decisions that only limit an employee's potential for promotion, rather than an actual denial of a promotion. The actions at issue in this case are not reprimands, disciplinary filings, or transfers equivalent to demotions. As such there is no adverse employment action under § 1983. Plaintiffs have failed to establish a prima facie case under § 1983. Furthermore, as discussed above, even if the Court were to consider the denial of study materials to be an adverse employment action, there is no evidence of a nexus between the adverse employment action and Plaintiffs' protected conduct.
III. Conclusion
Defendants' Motion for Summary Judgment is GRANTED.
SO ORDERED.