Opinion
CIVIL ACTION NO. 3:99-CV-0771-P.
February 26, 2002
MEMORANDUM OPINION AND ORDER
Now before the Court are the following:
1. Defendant's Motion for Summary Judgment, with supporting brief and appendix, filed May 9, 2001;
2. Plaintiffs Response in Opposition to Defendant City of Dallas' Motion for Summary Judgment, with supporting brief and appendix, filed June 25, 2001;
3. Defendant's Reply to Plaintiffs Response to Defendant's Motion for Summary Judgment, with a supplemental appendix, filed July 12, 2001; and
4. Plaintiffs Motion to Abate Ruling on Defendant's Motion for Summary Judgment Until Defendant Fully Complies with the Plaintiffs Open Records Request and to Supplement Plaintiffs Response to the Defendant's Motion for Summary Judgment, filed July 31, 2001.
After a thorough review of the summary judgment evidence, the pleadings, the parties' briefs, and the applicable law, for the reasons set forth below, the Court is of the opinion that Defendant's Motion for Summary Judgment should be GRANTED. Further, the Court finds that Plaintiffs Motion to Abate Ruling on Defendant's Motion should be DENIED.
BACKGROUND
Plaintiff Frantisek Benes brings the current lawsuit before the Court against his employer, the City of Dallas, alleging claims of discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-16; the Age Discrimination in Employment Act, 29 U.S.C. § 621-634; the Civil Rights Act of 1866 and 1871 (as amended by the Civil Rights Act of 1991), 42 U.S.C. § 1981; 42 U.S.C. § 1983 and 1985; and the 1st and 14th Amendments to the United States Constitution.
In his Response to Defendant's Motion for Summary Judgment, Plaintiff asserts that he no longer wishes to pursue and thereby waives any claims related to (1) Hostile Work Environment; (2) First Amendment Violations; and (3) Exemplary Damages. See Pl.'s Br. Opp. at 12, 15-16.
Benes is a naturalized citizen of the United States, born in Czechoslovakia on December 2, 1951. See Pl.'s First Am. Orig. Compl. at 1 (hereinafter "Compl."). Prior to his arrival in the United States, he received a Bachelor of Science degree and a Master of Science degree in Civil Engineering from the Vut University of Brno, and worked as a Registered Engineer in Czechoslovakia for ten years. See Benes Aff. at 1.
Plaintiff began his employment with the City of Dallas on or about November 18, 1987, initially hired for the position of Water Technician. See Id. at 1. He complains that the City began discriminating against him beginning sometime in January of 1989, when he applied as an inside applicant and fulfilled all city requirements (including taking a foreign degree examination) for the position of Engineer Assistant. Compl. at 3; Benes Aff. at 2. Benes claims his education was later certified by the Rochester Institute of Technology as being the equivalent of a Master of Science degree in the United States. Benes Aff. at 2-3; Pl.'s App. at 366. Nonetheless, the City instead hired several "outside applicants," with less seniority, through an "open advertisement" for these positions, allegedly in violation of its own Civil Service Rules and standards. Compl. at 3. Thus, it is Plaintiffs belief that, beginning with his application for Engineer Assistant, the Defendant City always exposed him to full outside competition and sought every possibility for the advancement of employees of United States origin or anyone who was educated in the United States, thus treating him differently because of his Czech national origin and education. Compl. at 3-4.
Benes also alleges that despite his applications before 1991 for openings as an Engineering Drafter or Design Technician, the Defendant City also eliminated him from consideration for these positions in favor of domestic outside applicants hired through open competition, despite Plaintiff being an inside applicant with both priority and seniority rights. See Compl. at 5.
The City of Dallas finally promoted Plaintiff to an Engineer Assistant position on March 20, 1991. Id. Nevertheless, Benes complains that the City unnecessarily delayed his registration as a Texas Professional Engineer ("P.E.") because of their insistence that he first fulfill the State of Texas' requirement of two years of engineering experience in the United States, despite the fact that he had extensive engineering experience in water and wastewater and a foreign Masters Degree from Czechoslovakia. Id. Plaintiff also complains that he was discriminated against when he was given the minimum allowable salary of $2,166.00 a month, which was the salary given only to new graduates with no work experience. Id. He alleges engineers of United States origin were always given higher salaries than him, despite the fact they generally had only bachelor degrees and minimum or no experience in municipal water and wastewater management. Id. at 5-6. In addition, Benes contends that since Defendant used this discriminatory salary as the basis for determining annual, promotional and cost of living salary increases, these constituted "continuing violations," whereby each pay period amounted to a distinct illegal act, creating a pattern of pay and promotional discrimination against him. Id. at 6.
Plaintiff claims this pattern of discrimination continued through on or about October 1, 1994, when the City of Dallas restructured its engineering positions within the Dallas Water Utilities ("DWU") and the Public Works Departments ("PW"). Id. at 7. During this time, the City established alternative promotional procedures for all engineering positions, referred to as "Growth Promotions," wherein all engineer positions were reclassified to the position of Senior Engineer 57. See Id.; see also Benes Dep., Vol. II at 34. Even though their title was Engineer 57, all engineers were assigned to one of three class codes for purposes of compensation, based on his or her job duties and responsibilities: Engineer Assistant 54, Engineer 56 and Senior Engineer 57. See App. Def. Mot. at 179 (Palmer Aff. at 1). Benes, who was an Engineer Assistant prior to the redesign, was assigned class code 54, though his title was changed to Engineer 57. See Id. at 180 (Palmer Aff. at 2).
Later, after receiving his professional engineer certification from the State of Texas on or about February 3, 1995, see Benes Dep., Vol. 1 at 58, Benes asserts that he was certified as eligible for final Engineer 57 pay level by the Civil Service as early as March 1995, and again in April 1995 and March 1996. See Compl. at 8. Benes claims the City of Dallas violated the Civil Service Rules, which require that steps be taken to place employees in proper classifications as quickly as possible, by not promoting him to final 57 pay level during this time, even though 17 other DWU and PW engineers (including Hamid Fard, who had foreign work experience, but was not of Czech origin) were promoted by the City. See Id.; see also Benes Aff. at 6. As such, Benes believes that from March 15, 1995 until March 25, 1998, when he was finally promoted to Senior Engineer 57, he was discriminated against by the City's Engineer Growth Series Pay Slotting and Pay Promotions program. See Compl. at 9-10; see also Benes Dep., Vol. II at 6.
Meanwhile, on March 15, 1995, Benes received a promotion to Engineer 56 class, together with an 8 percent pay raise, following the implementation of the growth series. See Benes Dep., Vol. I at 59, 64-67. However, Benes believes even this promotion was done discriminatorily since it was not postponed in order for him to receive an additional four-percent merit increase he believed was due to him from his previous Engineer 54 status. See Id. at 70-71. Thus, on November 15, 1995, he submitted a grievance to his supervisor relative to this complaint. See Id. at 66-67.
Plaintiff also alleges other incidents of illegal discrimination and unfair employment practices by the DWU management during this time. More specifically, on or about March 16, 1995, Benes alleges he had a meeting with the Division Manager Daniel Saldana, wherein Plaintiff asserted unfairness and differences in pay compared to other similarly situated employees. See Compl. at 17. Plaintiff states that Mr. Saldana told him that his pay was proper because Plaintiff spoke English with an accent, which the assistant director thought was difficult to understand. See Id. at 18. Also, on March 21, 1995, Mr. Saldana, in the presence of Saeed Rezai, purportedly signed and returned to Plaintiff the documentation package he had submitted to support his request for proper pay. See Id. In addition, Benes claims he was segregated into an undesirable work unit in the Relocations Department from March 1995 through January 1997, though he had applied repeatedly for position pay level 57. See Id. He also believes he was wrongfully denied cross training with preferable group project management. See Id. Moreover, Benes alleges he was exposed to harassment and retaliation from his Manager, Jim Milstead, during the interview process in March 1996 and after filing discriminatory grievances, when Milstead purportedly tried to damage Plaintiffs performance evaluations by attempting to find mistakes in Plaintiffs work, and trying to exclude him from assignments which would give him more experience in Texas. See Id. All this, Benes believes, amounts to further evidence of national origin discrimination by the Defendant.
In addition, during March of 1996, Benes alleges that DWU discriminated against him during the interview process for the position of Senior Engineer 57. See Compl. at 32. More specifically, Plaintiff asserts Mr. Milstead illegally promised to hire Brian Cowan, who was of United States origin, even though Mr. Cowan had resigned from DWU employment and therefore had lost his seniority and other credits. See Id. Plaintiff believes Milstead discriminated against him by omitting his Engineer Growth Series rights to noncompetitive promotion for the position, and because he was already working in Relocations (i.e., an inside applicant), had seniority credit, and had a detailed knowledge of the projects and the working environment. See Id. Thus, Benes declares this "opening" of the Engineer 57 position in Relocations to the entire public, instead of simply implementing a competitive "Promotional" announcement (open to City employees only), was discriminatory toward him. See Benes Aff. at 7-8. Thus, by violating City rules in using open competitive outside advertisements, outside applicant Cowan was able to be hired in Plaintiff's stead. See Compl. at 33. Benes believes Milstead deliberately gave less importance to his specific qualifications (such as seniority, records of merit, education outside Texas, and specific water and sewer experience) and focused more on arbitrary, nonessential experiences for the job (such as computer and CASS experience, budget experience, verbal skills and Texas experience) in order to discriminate against him. See Id. at 35-40.
Again, sometime in September 1997, Benes alleges that Dallas Water Utilities management simulated an interview process to cover up the discriminatory interview process of March 1, 1996. See Compl. at 41. This is how, according to Plaintiff, DWU selected inside applicant Hamid Baha, one of a few foreign nationality engineers who had not yet been promoted, even though he was not qualified as an electrical engineer and had less than one year experience in the civil engineering field. See Id. Plaintiff believes that DWU and Milstead specifically continued to be "strict" with him, denying him this promotion based on his Czech national origin. See Id.
Benes further charges that the City continued its discriminatory treatment of him on or about December 1998, during the City's selection of the next promotional step: Engineer 58 (Program Manager). See Id. at 10. More specifically, Plaintiff claims that Defendant's discrimination consisted of amending, unnecessarily, the minimum requirements for the Engineer 58 position to five years of recent experience as a Texas Registered Professional Engineer. See Benes Aff. at 7; see also Compl. at 11. He believes this decision by the City effectively screened him out of the opportunity to even apply for the Engineer 58 position, and was done specifically to eliminate him from consideration because of his Czech national origin. See Compl. at 8-9, 11. Consequently, Betty Taylor and Robert Johnson, both younger than Plaintiff, and Charles Stringer, all of whom were of United States national origin, were promoted to Engineer 58 instead. See Id. at 11.
On October 1, 1998, Plaintiff filed a charge of discrimination with the EEOC, alleging he was denied equal wages as a Senior Engineer 57 before March 24, 1998, and was denied promotion to pay level Engineer 57, due to his Czechoslovakian national origin. See App. Def.'s Mot. at 141; see also Benes Dep., Vol. II. at 61-62. Benes received his right to sue letter as to these charges sometime after January 7, 1999. See Benes Dep., Vol. II at 62.
On February 26, 1999, Plaintiff again filed charges of discrimination and was issued a right to sue letter the same day by the EEOC, related to allegations of national origin, retaliation and age discrimination, covering the time period between January 20, 1989 and February 26, 1999. See App. Def.'s Mot. at 143-146; Benes Dep., Vol. II at 112-113. Plaintiff's second charge covered allegations that since 1989 he was not hired for the position of Engineer Assistant 54 and was denied equal wages. See Benes Dep., Vol. II at 115-116. Plaintiffs charge also stated he was denied promotions to Engineer 54, 56, 57 and 58 status during these years when much younger people were hired, with less experience and less education than him. See Id. at 117-118. Additionally, Benes also included charges of retaliation in his complaint, based on his suspicions that these nonpromotions had something to do with the filing of grievances with the City. See 127-128.
Finally, in May of 1999, Benes interviewed for the position of Pumping Manager 58. App. Def.'s Mot. at 186 (Patterson Aff. at 1). The selection committee, however, instead selected Alfred Boateng, whom the committee had scored higher than Plaintiff. Id. at 187 (Patterson Aff. at 2). Benes alleges that the City illegally upgraded Mr. Boateng's interview scores to be able to select him for the position and downgraded his interview scores to damage his chances of being selected. See Id. at 122-127 (Pl.'s Resp. Interrog. No. 2). After being informed on June 25, 1999 that he was not chosen for the promotion, Plaintiff filed another charge of discrimination with the EEOC on April 17, 2000. See Benes Dep., Vol. III at 96; see also App. Def.'s Mot. at 147. In this charge, Benes complained that he was discriminated against because of his race (White), national origin (Czech), age (47), and in retaliation for having filed his previous charges of discrimination. See App. Def.'s Mot. at 147. He received a right to sue letter for this charge of discrimination on or about July 15, 2000. See Benes Dep., Vol. III at 96.
Thereafter, Benes filed his Original Complaint against the City of Dallas on April 7, 1999, and his First Amended Original Complaint on October 19, 2000, now pending before this Court.
DISCUSSION
I. The Parties Claims
In this action, in his remaining claims Benes asserts a right of recovery against Defendant City of Dallas for intentional discrimination and retaliation taken against him in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-16; the Age Discrimination in Employment Act, 29 U.S.C. § 621-634; the Civil Rights Act of 1866 and 1871, 42 U.S.C. § 1981; 42 U.S.C. § 1983 and 1985; and the 14th Amendment to the United States Constitution. See Pl.'s Orig. Comp. at 1-4; see also Footnote 1 supra. More specifically, Plaintiff contends that: (1) he was treated disparately because of his national origin and race compared to other similarly situated co-workers of the Defendant; (2) suffered retaliation by wrongfully being denied promotion opportunities when he complained about this disparate treatment; (3) was discriminated against because of his age compared to other similarly situated co-workers; and (4) suffered discrimination encroaching on his constitutional rights, including his rights to equal protection under the 14th Amendment. See Pl.'s Compl. at 44, 48, 50-51, 53.
Meanwhile, Defendant City of Dallas moves this Court for relief claiming that summary judgment is proper because (1) most of Plaintiffs claims are time-barred; (2) Plaintiff cannot establish a prima facie case on several of his claims; (3) Plaintiff cannot adduce evidence to permit a reasonable trier of fact to find the articulated reasons for the City's actions were pretextual, or to find that "but for" his protected activity the City would not have taken the actions in question; and (4) he cannot establish a § 1983 violation because he cannot show the existence of an unconstitutional policy or custom, or establish the existence of an injury as a result thereof. See Def.'s Mot. Summ. J. at 7. Each of these arguments will be considered in turn.
II. Standard for Summary Judgment
Summary judgment shall be rendered when the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). All evidence and the reasonable inferences to be drawn therefrom must be viewed in the light most favorable to the party opposing the motion. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).
The moving party bears the burden of informing the district court of the basis for its belief that there is an absence of a genuine issue for trial, and of identifying those portions of the record that demonstrate such an absence. Celotex, 477 U.S. at 323. Once the moving party has made an initial showing, the party opposing the motion must come forward with competent summary judgment evidence of the existence of a genuine fact issue. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The party defending against the motion for summary judgment cannot defeat the motion unless he provides specific facts that show the case presents a genuine issue of material fact, such that a reasonable jury might return a verdict in his favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Mere assertions of a factual dispute unsupported by probative evidence will not prevent summary judgment. Id. at 248-50; Abbot v. Equity Group, Inc., 2 F.3d 613, 619 (5th Cir. 1993). In other words, conclusory statements, speculation and unsubstantiated assertions will not suffice to defeat a motion for summary judgment. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1429 (5th Cir. 1996) (en banc). If the nonmoving party fails to make a showing sufficient to establish the existence of an element essential to its case, and on which he bears the burden of proof at trial, summary judgment must be granted. Celotex, 477 U.S. at 322-23. The Court will not, in the absence of any proof, assume that the nonmoving party could or would prove the essential facts necessary to support a judgment in favor of the nonmovant. See Little v. Liquid Air Corp., 37 F.3d 1069, 1075-1076 (5th Cir. 1994).
Finally, the Court has no duty to search the record for triable issues. Ragas v. Tennessee Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998). "The party opposing summaryjudgment is required to identify specific evidence in the record and to articulate the precise manner in which the evidence supports his or her claim." Id. A party may not rely upon "unsubstantiated assertions" as competent summary judgment evidence. Id.
III. Non-Promotion Claims
A. Timeliness of Plaintiff's EEOC Charges
In Texas, a plaintiff bringing claims under either Title VII or the ADEA must file a charge of discrimination with the EEOC within 300 days after learning of the conduct alleged. See 42 U.S.C. § 2000e-5(e)(1) (2001); 29 U.S.C. § 626(d)(2) (2001); see also Huckabay v. Moore, 142 F.3d 233, 238 (5th Cir. 1998). Federal courts generally treat this 300-day filing requirement as in the nature of a statute of limitations. See Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393-394 (1982); see also Webb v. Cardiothoracic Surgery Assoc. of North Texas, P.A., 139 F.3d 532, 537 (5th Cir. 1998). However, under the "continuing violation" doctrine, a limited, equitable exception to the limitations period exists when the unlawful employment practice manifests itself over time, rather than as a series of discrete acts. See Huckabay, 142 F.3d at 238. The focus in applying the continuing violation theory is on what event, in fairness and logic, should have alerted the average lay person to act to protect his rights. See Id.
In this case, Benes did not file charges of discrimination with the EEOC until October 1, 1998 (for the denial of equal wages and promotion to Senior Engineer 57 level from 12/05/97 to 03/24/98 because of national origin) and February 26, 1999 (for violations occurring between 1/20/89 and 2/26/99 based on national origin, age and retaliation). See App. Def.'s Mot at 14l-146. Nonetheless, Plaintiff contends that since Defendant City used a discriminatory salary as the basis for determining annual, promotional and cost of living salary increases, each pay period amounted to an illegal act in a pattern of pay and promotional discrimination against him, constituting "continuing violations." See Compl. at 6.
Benes filed a third charge of discrimination with the EEOC on April 17, 2000 for the denial of promotion to Manager of Pumping Operations 58 on June 25, 1999. See App. Def.'s Mot. at 147-148. The Court shall address this charge of discrimination below.
In the past this Court has found that whenever "failure to promote claims" are involved, a plaintiff cannot rely on the continuing violation doctrine to extend the limitations period because such claims, by their very nature, are isolated occurrences that should have put the plaintiff on notice that a claim had accrued. See Blackman v. City of Dallas, No. Civ.A. 3:00-CV-0075-p, 2001 WL 18752 at *2 (N.D. Tex. Jan. 23, 2001) (Solis, J.) (citing Huckabay, 142 F.3d at 240). Plaintiff himself acknowledges here being on notice of potential discriminatory actions when he claims he was exposed to full outside competition and treated differently because of his Czech origin and education when Defendant City failed to promote him to (1) Engineer Assistant, from January 1989 to March 1991; (2) Engineering Drafter and/or Design Technician prior to 1991; and (3) Senior Engineer 57 in March 1995, April 1995 or March 1996. See Pl.'s Compl. at 1-6. Indeed, Benes wrote numerous letters and instituted several grievances throughout this period complaining to City of Dallas officials of what he believed were discriminatory denials of each of these promotions. See App. Def.'s Mot. at 163-178). As such, "plaintiff may not [now] employ the continuing violation theory to resurrect claims about discrimination concluded in the past, even though its effects persist." Berry v. Board of Sup'rs of L.S.U., 715 F.2d 971, 979 (5th Cir. 1983). Therefore, as a general matter, any potential claims arising out of Defendant's alleged discriminatorily motivated non-promotions, shall be considered time barred if they occurred prior to December 5, 1997, and May 4, 1998 (300 days before the filing of Benes' first two EEOC charges on October 1, 1998 and February 26, 1999, respectively).
B. Timeliness of Plaintiff's Judicial Complaint
Defendant City further asserts that Plaintiffs claim for non-promotion to Pumping Manager 58 in June of 1999 is also time barred since this claim was not included until his First Amended Complaint, which was not filed within 90 days after Plaintiff received his right to sue letter from the EEOC. See Def.'s Mot. Summ. J. at 4.
Under Title VII and the ADEA, the time to file a complaint ends on the 90th day after the EEOC has issued its right to sue notice. See 42 U.S.C. § 2000e-5(f)(1); 29 U.S.C. § 626(e); see also St. Louis v. Texas Worker's Comp. Comm'n, 65 F.3d 43, 47 (5th Cir. 1995). This 90-day limitation period begins to run on the date that the EEOC right to sue letter is delivered to the offices of formally designated counsel or to the claimant himself. See Ringgold v. Nat'l Maint. Corp., 796 F.2d 769, 770 (5th Cir. 1986). In this case, Benes acknowledges receiving his right to sue letter related to the April 17, 2000 EEOC charge on or about July 15, 2000. See Benes Dep., Vol. III at 96. He subsequently filed an unopposed motion for leave to amend his Original Complaint on October 11, 2000. Thereafter, United States Magistrate Judge Jeff Kaplan unfiled Plaintiffs motion, citing his failure to comply with the Court's Standing Order on Non-Dispositive Motions and Local Rule 7.1(c), requiring that proposed orders be signed by all counsel of record. See Show Cause Order dated 10/12/00. Benes was later granted leave by Judge Kaplan to file his First Amended Complaint on October 19, 2000, which included the additional charge of discrimination.
Although Plaintiffs amended complaint was filed 103 days after the receipt of his right to sue letter, but for the defectiveness of Benes' first motion for leave, the non-promotion claim to Pumping Manager 58 would have been considered timely within the prescribed 90-day period. The Fifth Circuit has stated that, though sparingly used, equitable tolling may apply where the claimant has actively pursued a judicial remedy but has filed a defective complaint. Rowe v. Sullivan, 967 F.2d 186, 192 (5th Cir. 1992). The Court finds that equitable tolling is appropriate here, since Plaintiff, without a doubt, was vigorously pursuing his action but inadvertently missed the Court's deadlines because of his counsel's defective first motion for leave to amend. As such, the Court denies summary judgment to Defendant on this claim.
C. The Parties' Burdens Under the Failure to Promote Claims
At the outset, it should be noted that district courts are free to adopt the same basis for deciding both Section 1981 and Title VII failure to promote claims because both types of claims are analyzed under the general Title VII evidentiary framework. See Walker v. Thompson, 214 F.3d 615, 625 (5th Cir. 2000). In addition, claims brought under the ADEA are also subject to this same analytical framework. See O'Conner v. Consol. Coin Caterers Corp., 517 U.S. 308, 311 (1996); Bodenheimer v. PPG Indus., Inc., 5 F.3d 955, 957 n. 4 (5th Cir. 1993).
When a plaintiff such as Benes alleges disparate treatment, "liability depends on whether the protected trait actually motivated the employer's decision." Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 141 (2000) (citing Hazen Paper Co. v. Biggins, 507 U.S. 604, 610 (1993)). That is, the plaintiffs age, race, and/or national origin, must have "actually played a role in the employer's decisionmaking process and had a determinative influence on the outcome." Id. Thus, plaintiff must prove intentional discrimination either through direct evidence or indirect evidence. See Price v. Marathon Cheese Corp., 119 F.3d 330, 336 (5th Cir. 1997).
Direct evidence of discrimination is evidence that proves the defendant acted with discriminatory intent, without the need for inference or presumption. Mooney v. Aramco Serv. Co., 54 F.3d 1207, 1217 (5th Cir. 1995). lf direct evidence is unavailable, as is typically the case, the plaintiff may create an inference of discrimination by using the familiar McDonnell Douglas/St. Mary's burden shifting framework. See Russell v. McKinney Hosp. Venture, 235 F.3d 219, 222 (5th Cir. 2000).
In order to create an inference of discrimination, the plaintiff must first establish a prima facie case of discrimination. Shackleford v. Deloitte Touche, LLP, 190 F.3d 398, 404 (5th Cir. 1999). Such a prima facie case is established if the plaintiff provides evidence that: (i) he is a member of a protected class; (ii) that he sought and was qualified for an available employment position; (iii) that he was rejected for that position; and (iv) that after he was rejected, the employer promoted, hired, or continued to seek applicants with the plaintiffs qualifications. See Grimes v. Texas Dep't of Health and Mental Retardation, 102 F.3d 137, 140 (5th Cir. 1996); see also Jones v. Flagship Int'l, 793 F.2d 714, 724 (5th Cir. 1986) (alleging sex discrimination in employer's failure to hire or promote). In an age discrimination claim, the plaintiff may alternatively satisfy the fourth element by showing that "he was either (a) replaced by someone outside the protected class, (b) replaced by someone younger, or (c) otherwise discriminated because of his age." See Brown v. Bungee Corp., 207 F.3d 776, 781 (5th Cir. 2000); see also Meinecke v. HR Block, 66 F.3d 77, 83 (5th Cir. 1995).
The prima facie case, once established, raises a presumption of discrimination which the defendant must rebut by articulating legitimate, nondiscriminatory reasons for its actions. Shackleford, 190 F.3d at 404. This burden on the employer is only one of production, not persuasion, involving no credibility assessments. Russell, 235 F.3d at 222. If the employer carries its burden, the mandatory inference of discrimination established by the prima facie case drops out of the picture. Id.
Since the ultimate burden of persuasion remains at all times with the plaintiff, the Supreme Court has stated that in attempting to satisfy this burden, the plaintiff — once the employer produces sufficient evidence to support a nondiscriminatory explanation for its decision — must be afforded the opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but was a pretext for discrimination. Reeves, 530 U.S. at 143. Consequently, the Supreme Court has found that a plaintiff's prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to conclude that the employee was unlawfully discriminated against. Id. at 148. However, this is not to say that a showing of pretext alone automatically would entitle an employee to a judgment as a matter of law. Id. That is, there may be instances where the employer would be entitled to judgment if the record conclusively revealed some other nondiscriminatory reason for its decision, or if the plaintiff created only a weak issue of fact as to whether the employer's reasons were untrue and there was abundant and uncontroverted independent evidence that no discrimination had occurred. Id. Regardless, at this summary judgment stage, Plaintiff need only raise a genuine issue of material fact. See Khanna v. Park Place Motorcars of Houston, Ltd., NO. CIV.A. 3:99-CV-0135, 2000 WL 1801850 *2 (N.D. Tex. Dec. 06, 2000) (Fitzwater, J.).
D. Application of the Law to the Facts
In the instant case, Benes essentially claims that he was discriminated against by being denied the following promotions: (1) to Engineer Assistant, from January 1989 to March 1991; (2) to Engineering Drafter and/or Design Technician, pre-1991; (3) to Senior Engineer 57, from March 1995 to March 1998; (4) Program Manager Engineer 58 in December 1998; and (5) Pumping Manager Engineer 58 in June 1999. See Pl.'s Compl. at 1-6. Each of these claims will be addressed in turn.
1. Engineer Assistant, Engineering Drafter and/or Design Technician Positions.
As more fully stated above, since Benes did not timely file an EEOC discrimination charge regarding any alleged discrimination in the denial of promotions to Engineer Assistant, Engineering Drafter and/or Design Technician between January 1989 to March 1991, these potential claims, having occurred prior to December 5, 1997 or May 4, 1998, are considered time barred by the Court. See Section 111(B) supra. Accordingly, summary judgment is granted to the Defendant with respect these claims.
2. Senior Engineer 57 Position.
Plaintiff asserts that because of his Czechoslovakian national origin, he was denied equal wages and a promotion to pay level Senior Engineer 57 status from December 5, 1997 until March 25, 1998, in violation of Title VII. See App. Def.'s Mot at 141-142 (EEOC Charge dated 10/1/98). Additionally, Benes claims he was discriminated against for this position when, in March 1995, he was assigned to class code Engineer 56 status while 17 other DWU and PW engineers, not of Czech origin, were promoted to Engineer 57 status by the City. See Compl. at 8. And again discriminated against in March of 1996, when he was not selected for a vacant Senior Engineer 57 position later filled by Brian Cowan, an engineer of United States origin. See Id at 32. In addition, Benes alludes to discrimination against him in September 1997, when DWU management simulated an interview process to cover up their previous discriminatory interviews of March 1996, and selected inside applicant Hamid Baha, an engineer of foreign nationality (though not a Czech), who was less qualified for the position. See Id. at 41. However, having already found Plaintiffs Title VII-based claims which occurred prior to December 5, 1997 are considered to be time barred, the Court shall limit its analysis only to Benes' non-promotion to Senior Engineer 57 status from this date until March 25, 1998.
To articulate a prima facie case of discrimination, Plaintiff must show that he (i) belongs to a protected class; (ii) sought and was qualified for the job; (iii) was rejected for that position; and (iv) was replaced by someone outside the protected class. See Blackman, 2001 WL 18752 at *2. In this case, Defendant City of Dallas does not challenge Benes' status as a member of a protected class. However, it does challenge Plaintiffs ability to establish a prima facie case in that he was not qualified for the job. More specifically, Defendant asserts that the Water Department's growth series, implemented on March 1, 1995, required a minimum of 4 years of progressive engineering experience following P.E. registration in Texas before an employee became eligible for promotion from Engineer 56 to Senior Engineer 57 status, a standard which Benes did not satisfy. See Br. Supp. Def.'s Mot. at 12; see also App. Def.'s Mot. at 151-152.
Plaintiff admits that he did not receive his professional engineer's certification from the State of Texas until on or about February 3, 1995. See Benes Dep., Vol. 1 at 58. Nevertheless, Plaintiff claims that he should have been qualified and eligible for promotion to Senior Engineer 57 because the City's 4-years experience requirement lacked any legitimate rationale. See Pl.'s Br. Opp. at 8. Plaintiffs reasoning is based on the fact that the Texas Board of Professional Engineers, which is the state licencing board for engineers, only required him to obtain an additional two years of engineering experience in the United States before becoming eligible for registration in Texas. See Id. Thus, Benes asks rhetorically, "what is so special about the City of Dallas Water Department that overrides the licensing board for Texas requirements for registration to not only double the engineering requirement to four years but to [also] make it `progressive'?" Id. at 13. However, regardless of the wisdom of this requirement, Plaintiff does not challenge the City's evidence that these criteria were applied objectively and evenhandedly to all employees. See Def.'s Reply at 10. Moreover, Benes has not presented any evidence that suggests he was treated differently than a similarly situated individual. See Little v. Republic Refining Co., 924 F.2d 93, 97 (5th Cir. 1991).
Furthermore, Defendant has provided the Court with evidence that demonstrates that once Benes met the years experience requirement in March of 1998, and he was in a position that allowed for growth to a Senior Engineer 57, he was subsequently promoted to that class code. Therefore, Plaintiff has failed to carry his burden of establishing a prima facie case of discrimination for nonpromotion to the Senior Engineer 57 position between December 1997 and March 1998. Accordingly, summary judgment shall be granted to the Defendant with respect this claims.
In 1997, the growth series was amended to require only three years progressive registered engineering experience for promotion from Engineer 56 to Engineer 57 status. See App. Def.'s Mot. at 157.
3. Program Manager Engineer 58 Position
Benes further alleges that the City of Dallas discriminated against him on the basis of his national origin and age, on or about December of 1998, when he was not offered promotion to Program Manager 58. See Compl. at 10. More specifically, Plaintiff claims that he was not allowed to interview for three vacant Program Manager 58 positions which became available in December 1998, even though he asserts he applied for the position and was certified by the Civil Service. See Benes Dep., Vol. III at 6. Instead, these positions were given to three employees of United States national origin, Charles Stringer, Betty Taylor and Robert Johnson, the latter two being younger than Plaintiff. See Compl. at 11. Meanwhile, Defendant again claims that Benes cannot establish a prima facie case of discrimination because he was not qualified for the position. See Br. Supp. Def.'s Mot. at 16.
According to Terrance W. Stewart, Director for DWU, the Program Manager 58 positions were not part of the growth series for the City's engineers and thus were filled through a competitive interview process. See App. Def.'s Mot. at 202 (Stewart Aff. at 4). As such, when the three positions became available in December 1998, the designated selection committee conducted interviews of only those eligible candidates who were on that particular Civil Service register. See Id. at 184 (Dugger Aff. at 1-2). In addition, the minimum requirements for these positions, which were established by the hiring department, included a minimum five years of registered engineering experience. See Id. The record evidence in this case shows that the Plaintiff was not on the Program Manager 58 register, and also lacked the required five years registered experience since, at the time, Benes had only been registered as a P.E. in Texas for approximately three and one-half years. See Id. at 197-198 (Turner Aff. at 1-2); see also Br. Supp. Def.'s Mot. at 16.
Nevertheless, Benes asserts that Defendant discriminated against him by unnecessarily amending the minimum requirements to include these 5 years of recent experience as a Texas registered P.E. for the position, and for not including his experience as an engineer in Czechoslovakia, thus rendering him ineligible to interview for three vacant Program Manager 58 positions. See Compl. at 11; see also Benes Aff. at 7. Again, regardless of the wisdom of this decision, the Plaintiff cannot point the Court to any evidence that this requirement was patently discriminatory on its face, or that it was not applied objectively and evenhandedly to all City and non-City applicants for these position. Moreover, Benes has not presented any evidence that suggests he was treated differently than any other similarly situated individuals that did receive interviews even though they lacked the requisite years' experience or were not on the register. See Little, 924 F.2d at 97.
Further, Benes' claim that he was discriminated against because of his age also fails here. His allegation is simply based on the fact that two of the three applicants hired by the City for the Program Manager 58 positions were younger than he. However, an essential element in establishing a prima facie case of age discrimination requires that the plaintiff prove his qualifications for the position in question. See Brown, 207 F.3d at 781. Therefore, based on the above stated considerations, the Court finds that Benes has failed to carry his burden of establishing a prima facie case of discrimination for non-promotion to the Program Manager Engineer 58 on or about December 1998. Accordingly, summary judgment is granted to the Defendant with respect this claim.
4. Pumping Manager Engineer 58 Position.
Benes also claims he was discriminated against because of his national origin, race and age when he was not promoted to Pumping Manger 58 on or about June 25, 1999. See Compl. at 53. Specifically, Plaintiff asserts that Defendant instead hired Alfred Boateng, an African-American individual of United States origin, who was almost ten years younger than he, and who had less experience and less education than Plaintiff. See Pl.'s Br. Opp. at 11.
Plaintiffs allegations of discrimination in his non-promotion to Pumping Manager 58 also include charges of retaliation against Defendant City which will be addressed below.
Benes may establish a prima facie case here if, in addition to (i) being a member of a protected class and (ii) that he sought and was qualified for the Pumping Manager 58 position, he proves (iii) he was rejected for that position and (iv) that after he was rejected, the employer promoted, hired, or continued to seek applicants with the plaintiffs qualifications or outside of plaintiffs protected class. See Grimes, 102 F.3d at 140; see also Jones, 793 F.2d at 724. Here, the Court finds that, though weak, Benes can make out a prima facie case of discrimination: he was within the relevant protected classes for national origin (Czech), race (White) and age (48); he was interviewed for the position in May 1999, which may indicate his competence; he was not promoted; and the position was filled by someone not within any of his relevant protected classes. See Okere v. Bill J. Priest Inst. for Econ. Dev., No. 3:00-CV-2660-H, 2001 WL 1297654 at *4 (N.D. Tex. Oct. 10, 2001) (Sanders, S.J.).
The burden then shifts to the Defendant to provide legitimate, nondiscriminatory reasons for its actions. See Shackleford, 190 F.3d at 404. Here, the City of Dallas asserts that the selection committee, on May 27 and 28, 1999, interviewed ten candidates, including Frantisek Benes, for the Pumping Manager 58 position. See App. Def.'s Mot. at 186 (Patterson Aff. at 1). The committee scored each candidate in several categories, with all candidates being rated as qualified ("Q"), highly qualified ("HQ"), and very highly qualified ("VHQ"). See Id. at 186-187 (Patterson Aff. at 1-2). Four candidates had an overall ranking of VHQ, among these Mr. Boateng, and five candidates had an overall ranking of HQ, including Plaintiff. See Id. at 187 (Patterson Aff. at 2). Based on the rankings of the selection committee, Mr. Larry Patterson, who was the Assistant Director for DWU, conducted a second round of interviews with three of the four VHQ candidates, including of Mr. Boateng, who was ultimately selected as the most qualified candidate. See Id. According to Mr. Patterson, no candidate was given points during their evaluation because of seniority, and national origin, gender, race and age did not factor in Plaintiffs or any other candidate's evaluation. See Id.
Thus, having proffered a legitimate, nondiscriminatory reason for Benes' non-promotion to the Pumping Manager 58 position, any inference of discrimination established by his prima facie case drops out of the picture, and the burden swifts back to him to demonstrate that Defendant's reasons are in fact pretextual. See Evans v. City of Houston, 246 F.3d 344, 350 (5th Cir. 2001). Here, Plaintiff does not really dispute the qualifications of Boateng, but offers instead that he was the best and most highly qualified candidate for the position. See Pl.'s Br. Opp. at 11. Plaintiff provides the Court with more than 40 pages of a Power-Point presentation purportedly given to Terrace Stewart, Director for DWU, comparing his qualifications and his experience to those of Mr. Boateng. See Pl.'s App., Exh. 23 at 303-346. Among this evidence, Plaintiffs presentation claims that he had more than 22 years of experience in Municipal water and wastewater pipelines, structures and dams (to Boateng's approximately 5 years in water or wastewater), and he had the equivalent of a Masters Degree (while Boating had a B.A.). See Id. However, none of these exhibits on which Plaintiff relieves have been properly authenticated by him. Federal Rule of Evidence 901 requires that as a condition to admissibility, evidence must be authenticated or identified. The evidence presented to the Court is also in violation of the hearsay rule since this evidence consists of unverified written statements presented for their truth, but without even the slightest indicia of reliability. See Fed.R. Ev Id. 801-802. Regardless, even if the Court were to consider Plaintiffs evidence, Benes' attempts to show pretext and intentional discrimination by claiming that he had more experience and a better education than Boateng plainly fails. Defendant acknowledges that Benes had more seniority with the City, however, seniority did not play any role in the selection process for this Program Manager 58 position, and education and experience were only one of the categories considered during the selection process. See App. Def.'s Mot. at 187 (Patterson Aff. at 2). A genuine issue of material fact is created when the evidence shows that the plaintiff was "clearly better qualified" than the employee who was selected. See Nichols v. Loral Vought Sys. Corp., 81 F.3d 38, 42 (5th Cir. 1996). Moreover, the evidence must be more than mere subjective beliefs or speculation by the Plaintiff. See Id.
The only attempt to authenticate the evidence is Plaintiffs statement in his affidavit that: "During my employment with the City of Dallas I have received copies of documents, requested copies of documents and received copies of documents from the City of Dallas. I am familiar with the documents that I have received throughout my employment as described and the documents that I have received as a result of my lawsuit and request to the City of Dallas . . . My personal knowledge of the events described in this Affidavit also consists of my continued interaction with the engineers, engineer assistants, and other City employees, by visiting their offices, speaking with them, viewing their personnel files, viewing degrees on walls of offices, celebrating birthdays, discussing salary and promotions with co-workers, through casual and serious conversation." See Benes Aff. at 1-2.
Here, similar to the plaintiff in Nichols, Benes suggests that he was better qualified than the selected individual simply because he had more work experience than him. See Id. But even so, "an attempt to equate years served with superior qualifications is unpersuasive," and more evidence, such as comparative work performance, is needed to raise a genuine fact issue. See Id. (citing Bodenheimer, 5 F.3d at 959); see also Huckaby v. Crown, Cork Seal, No. Civ.A. 3:98-CV-1237-P, 1999 WL 680228 at *4 (N.D. Tex. Aug. 31, 1999) (Solis, J.) (mere fact that a plaintiff believes his employer discriminated against him is insufficient to prove discrimination). Because the evidence shows that the City of Dallas had a legitimate, non-discriminatory reason for selecting Mr. Boating instead of Plaintiff, namely the selection committee's belief that he was the more qualified of the candidates interviewed, and since Plaintiff has not produced any evidence other than this subjective belief regarding his superior qualifications, he has failed to make the requisite showing of pretext for a finding of discrimination. See Musgrove v. Mobil Bus. Res. Corp., No. 3:97-CV-2795-P, 1999 WL 108931 at *4-5 (N.D. Tex. Nov. 29, 1999) (Solis, J.). The Court declines to substitute its judgment for that of an employer in evaluating what types of experiences are most valuable for an employee in the new position in the absence of proof that the standards were not consistently applied or were so irrational or idiosyncratic so as to suggest a cover-up. EEOC v. Louisiana Office of Cmty. Serv., 47 F.3d 1438, 1445-1446 (5th Cir. 1995).
Moreover, Benes has also alleged that the City may have illegally upgraded Mr. Boateng's interview scores in order to have selected him for the position of Program Manager 58 and may have downgraded Plaintiffs interview scores to damage his chances of being selected. See App. Def.'s Mot. at 122-127 (Pl.'s Resp. Interrog. No. 2). However, Plaintiff has again presented the Court with nothing more than his own subjective belief in order to substantiate these accusations of wrongdoing.
Further, the summary judgment evidence shows two other candidates besides Mr. Boating who had an overall score that was higher that Plaintiffs and were given a second interview by the selection committee, and would have presumably been promoted before the Plaintiff if Mr. Boateng had not been chosen. See Def.'s Reply at 12. Therefore, since Benes has failed to create a jury issue that Defendant's proffered reasons for his non-promotion were a pretext for discrimination, summary judgment shall be granted against Plaintiff on these claims. See Crawford, 234 F.3d at 903 (plaintiff must present sufficient evidence to find that the employer's asserted justification is false).
IV. Retahation Claims
Benes also brings claims of retaliation taken against him Defendant City while engaging in protected activities, namely when he complained about disparate treatment as he was denied promotion opportunities throughout his employment. See Compl. at 48. The Court notes that the elements of a 42 U.S.C. § 1981 claim for retaliation are identical to the elements of an ADEA and a Title VII claim, see Anderson v. Douglas Lomanson Co., Inc., 26 F.3d 1277, 1284 n. 7 (5th Cir. 1994), and therefore it shall examine these claims under the McDonnell Douglas burden-shifting analysis for claims of unlawful retaliation. See Byers v. Dallas Morning News, Inc., 209 F.3d 419, 427 (5th Cir. 2000).
Under this framework, if Benes can establish a prima facie case, he will have raised a rebuttable presumption of discrimination and shifted the burden to Defendant to articulate a legitimate, nondiscriminatory reason for the employment decision. See Id. If Defendant satisfies this burden of production, the burden returns to Benes to show that Defendant's proffered reason is a mere pretext for unlawful retaliation. See Id. The ultimate determination in an unlawful retaliation case is whether the conduct protected by Title VII was a "but for" cause of the adverse employment decision. Long v. Eastfield College, 88 F.3d 300, 304 n. 4 (5th Cir. 1992) (citing McDaniel v. Temple Indep. Sch. Dist., 770 F.2d 1340, 1346 (5th Cir. 1985)).
To make out a prima facie case for retaliation, Plaintiff must prove that (i) he was engaged in protected Title VII activity; (ii) he suffered an adverse employment decision; and (iii) a causal nexus exists between the protected activity and the adverse employment decision. Byers, 209 F.3d at 427. An employee has engaged in activity protected by Title VII if he has either (1) "opposed any practice made an unlawful employment practice" by Title VII or (2) "made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing" under Title VII. See 42 U.S.C. § 2000e-3(a) (2001).
Throughout his complaint and deposition, Benes has asserted that the City of Dallas retaliated against him for submitting several grievances, including one on November 15, 1995. See Benes Dep., Vol. I at 66-67. Plaintiff alleges this retaliation manifested itself through (a) non-promotions to Senior Engineer 57 in March of 1996, to Program Manager 58 in December 1998, or to Pumping Manger 58 in June of 1999; (b) by subjecting him to more supervision; (c) by considering only his Texas experience during the promotional process; (d) in giving him undesirable work assignments; (e) by failing to consider his seniority during the promotional process; (f) by denying him crosstraining opportunities; (g) subjecting him to an unfair grievance process; and (h) using open advertisements in the hiring procedures. See Benes Dep., Vol. III. at 8-9, 61-63, 71-72, 75, 79-80, 82-84. However, in his Response to Defendant's Motion for Summary Judgment, Benes for the first time alleged that the protected activities on which he was relying on for his retaliation claims included the three charges of discrimination filed with the EEOC on 10-1-98, 2-26-99, and 4-17-00. See Pl.'s Br. Opp. at 13. Nevertheless, even if the Court considers both Benes' filing of grievances as well as his EEOC charges as the protected activity he was engaged in, Plaintiff still fails to establish the causal link that "but for" this protected conduct the Defendant's decisions not to promote him to the above noted positions would have been different. See Long, 88 F.3d at 304 n. 4.
Moreover, Plaintiff complains that Defendant further violated Title VII by
(a) failing to provide him with employment conditions and relationships where he could safely work, free from disparate treatment;
(b) failed to respond promptly to his complaints of disparate treatment;
(c) failed to timely, thoroughly investigate his complaints;
(d) failed to timely take appropriate action when it knew or should have known of the disparate treatment; and
(e) failed to timely discharge the supervisors and/or co-workers who perpetrated the discriminatory treatment against him.See Compl. at 48.
Plaintiff argues that the close timing between the filing of his grievances and/or the EEOC complaints here and the asserted non-promotions discussed above, justifies an inference of a retaliatory motive on the part of the Defendant that satisfies the required "but for" causal connection to make out a prima facie case. See Pl.'s Br. Opp. at 12. Meanwhile, Defendant City counters that there is no suspect timing here, and regardless, the mere fact than an adverse employment action chronologically follows a protected activity, standing alone, is insufficient to establish the requisite causal link. See Def.'s Reply at 12. That some adverse action is taken after an employee engages in some protected activity will not always be enough for a prima facie case. Swanson v. Gen. Serv. Admin., 110 F.3d 1180, 1188 n. 3 (5th Cir. 1997); see also Dickerson v. Metro. Dade County, 659 F.2d 574, 580 (5th Cir. Unit B 1981) (not every employee who is fired after having filed charges with the EEOC will fall within the protective ambit of Title VII). However, the Fifth Circuit has held that close timing between an employee's protected activity and an adverse action against him may provide the "causal connection" required to make out a prima facie case of retaliation. Swanson, 110 F.3d at 1188.
However, even assuming that the short lapse of time between the filing of grievances and/or EEOC charges and Plaintiffs non-promotions here can establish a prima facie case of retaliation, the Court finds it is not sufficient to assert that Defendant's articulated reasons for Benes' nonpromotions are pretextual. Once the employer offers a legitimate, nondiscriminatory reason that explains both the adverse action and the timing of it, the plaintiff must offer some evidence from which the jury may infer that retaliation was the real motive. See Swanson, 110 F.3d at 1188 (emphasis added). The Court finds that Benes here has not produced any such evidence to counter Defendant's nondiscriminatory reasons, save only to say that his evidence of retaliation is so intertwined with the continuous discriminatory treatment he has alleged that it is impossible for him to separate the two of them. See Pl.'s Br. Opp. at 12. His subjective beliefs and conclusory statements alone are insufficient as no reasonable jury could hold in this case that the City of Dallas retaliated against him because of the filing of his discrimination charges. See Musgrove, 1999 WL 1080931 at *6. Having failed to establish the requisite causal link between his charges and Defendant's actions, "i.e., that absent retaliation he would have been promoted," see Jones, 793 F.2d at 725, summary judgment shall be granted to Defendant City on these claims.
V. Fourteenth Amendment and Section 1983 and 1985 Claims
Benes also alleges here that the conduct of the Defendant City of Dallas violated rights independent of Title VII, including his right to testify without retaliation, and that such unlawful employment practices encroached upon his constitutional rights under 42 U.S.C. § 1983 and 1985. Compl. at 50.
Neither Section 1983 nor Section 1985 create substantive rights, but rather provide a right of action for a violation of statutory or constitutional rights. See McGregor v. Louisiana State Univ. Bd. of Sup'rs, 3 F.3d 850, 867 (5th Cir. 1993). Having already held that Benes cannot establish a violation under either Title VII, the ADEA, or Section 1981, these rights cannot form the basis for his Section 1983 and 1985 claims. The Court shall therefore limit its analysis to the allegations that Plaintiffs rights to equal protection under the 14th Amendment were violated by the Defendant. See Compl. at 50.
The standard for determining whether a prima facie case of discrimination has been established is identical under Title VII and Section 1983 equal protection claims. See Wallace v. Texas Tech Univ., 80 F.3d 1042, 1047-1048 (5th Cir. 1996). Because the Court has also concluded that Plaintiffs Title VII claims fail as a matter of law, his equal protection claims against the Defendant must also fail. Benes' mere conclusory allegations of the existence of an unconstitutional policy or custom is not sufficient to sustain his claims under Section 1983. Moreover, "the absence of foundation for § 1983 liability precludes a § 1985 conspiracy claim predicated on the same allegations." Riggs v. City of Pearland, 177 F.R.D. 395, 409 (S.D. Tex. 1997). Accordingly, the Court shall grant summary judgment to the Defendant on these claims.
CONCLUSION
For the reasons stated above, having considered the summary judgment evidence, the applicable law, and the parties' arguments, the Court is of the opinion that Defendant's Motion for Summary Judgment shall be and is hereby GRANTED. Further, the Court is the opinion that Plaintiff's Motion to Abate Ruling on Defendant's Motion shall be and is hereby DENIED.
IT IS SO ORDERED.
Signed this 26 day of February, 2002.
/s/ JORGE A. SOLIS UNITED STATES DISTRICT JUDGE