Opinion
CA 3:01-CV-895-R
January 2, 2003
MEMORANDUM OPINION AND ORDER
Now before this Court is Defendants' (Dallas Housing Authority, Ann Lott, Bill Manning, and Mike Polkinhorn) MOTION FOR SUMMARY JUDGMENT (filed August 23, 2002). On April 13, 2001, pro-se Plaintiff, Cynthia Gillespie ("Gillespie"), filed suit against Ann Lott, Bill Manning, Mike Polkinhorn (all individually) and Dallas Housing Authority, alleging violations of 42 U.S.C. § 2000e, 42 U.S.C. § 1983, the Civil Rights Acts of 1964 and 1991. For the reasons discussed below, Defendants' Motion is hereby GRANTED.
I. FACTUAL BACKGROUND
Gillespie, a black female, began working for the Dallas Housing Authority ("DHA") in its Central Maintenance Department, as a temporary employee in 1997. Later, in 1998, Mike Polkinhorn, Director of the Central Maintenance Department, recommended that Gillespie be hired as a full-time employee for a "Secretary I" position. Gillespie's recommendation for that position was subsequently approved.
According to the facts, after Gillespie became a full-time employee with DHA, her work attendance became poor. In late 1999, Mike Polkinhorn met with Gillespie to discuss her poor attendance. Subsequently, on February 18, 2000, Gillespie was absent from work and failed to notify her supervisors. In response, on February 22, 2000, Mike Polkinhorn gave Gillespie a written reprimand for her failure to notify her supervisors. During this time, Gillespie was given her first employment evaluation as a full-time employee. Mike Polkinhorn completed the evaluation, giving Gillespie an overall rating of four out of seven. According to DHA's evaluation guidelines, a rating of four is considered an "effective" job performance.
In her deposition testimony, Gillespie initially stated that she had left messages concerning her absence on various employees' voice mails. However, when questioned concerning this, she later recanted and confessed that she did not call in, because she could not speak due to laryngitis. Defendants Summary Judgment Appendix (Gillespie Deposition Vol. II, p. 63-64, App. p. 32).
In August 2000, Polkinhorn met again with Gillespie regarding her excessive absenteeism. This time Gillespie was given a written disciplinary warning. In response, Gillespie filed an internal grievance with DHA, alleging complaints against Polkinhorn, such as harassment and discrimination. An investigation of Gillespie's complaint against Polkinghom revealed that no discrimination or harassment had occurred.
Thereafter, Gillespie's excessive absenteeism persisted. Because of her continued absenteeism, Polkinghorn believed that Gillespie did not actually understand the employment leave policy. That is, if Gillespie exhausted her vacation and sick time balance for a particular period, annual or sick leave pay would be unavailable to her. Therefore, Polkinhorn attempted to read the policy to her. Gillespie took offense to this action by Polkinhorn.
According to DHA's leave policy, an employee may accrue four hours of sick time and four hours of annual leave every two-week pay period, if the employee is paid for 80 hours of work during that pay period. Thus, if an employee exhausts his sick or annual leave balance, and does not earn 80 hours of pay, then the employee will not accrue leave for that period of time.
Gillespie then filed her first EEOC Charge of Racial Discrimination on October 23, 2000. In her charge, she asserted that she was given unfair disciplinary action on February 22, 2000, an unfair performance evaluation, denied vacation and sick leave and called "dummy" and "girl" by Mike Polkinhorn. The EEOC subsequently dismissed her charge. Defendants Summary Judgment Appendix (Gillespie Deposition Vol. I, p. 106, App. p. 106).
On or about December 22, 2000, Gillespie was given a second annual performance evaluation by Mike Polkinhorn. The evaluation's comments indicated that Gillespie's poor attendance continued. As a result, Gillespie received an overall performance rating of three out seven, effectively a minus score.
On January 16, 2001, Gillespie filed a second charge with the EEOC, at that time alleging retaliation by her supervisors. Subsequently, the EEOC issued a no cause finding. Defendants Summary Judgment Appendix (Gillespie Deposition Vol. I, p. 128, App. p. 20).
Lastly, around February 9, 2001, all of DHA's maintenance employees were briefed concerning the Electronic Communications Systems Acknowledgment Form, which detailed DHA's computer and electronic communications systems procedures. These procedures established that DHA's computer and communication systems were for DHA business only, and by signing the form, employees waive the right to assert an invasion of privacy claim relating to such systems. All maintenance employees were expected to sign the form. However, Gillespie stated to her supervisors that before she could sign the form she needed to consult with her attorney. She was permitted to do so. Some time later, Gillespie indicated to her supervisors her intent not to sign the form. In fact, she was the only employee who refused to do. Signing the Electronic Communications Systems Acknowledgment Form was mandatory for all employees, if they were to continue to use DHA's computers. After refusing to sign the form, Gillespie was terminated.
On March 9, 2001, Gillespie filed her third charge with the EEOC, asserting that her termination from DHA was the result of her refusal to waive her privacy rights, and retaliation for filing her prior EEOC claims. Her third charge was also dismissed by the EEOC. Defendants Summary Judgment Appendix (Gillespie Deposition Vol. II, p. 100-102, App. p. 34-35; App. p. 87-88).
On April 13, 2001, Gillespie filed this pro-se lawsuit against Defendants in state court, alleging violations of " 42 U.S.C. § 2000e, Sec. 704(a), 42 U.S.C. § 1983, and the Civil Rights Acts of 1964 and 1991 as amended." Defendants, pursuant to 28 U.S.C. § 1441 and 1446, timely removed this action, where it is now presently before this Court.
II. ANALYSIS
A. Evidentiary Burdens on Motion for Summary Judgment
Rule 56(c) of the Federal Rules of Civil Procedure allows summary judgment only when the moving party demonstrates it is entitled to judgment as a matter of law because there is no genuine issue as to any material fact. See FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Melton v. Teachers Ins. Annuity Assoc. of Am., 114 F.3d 557, 559 (5th Cir. 1997). "The substantive law will identify which facts are material." See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The moving party bears the initial burden of identifying those portions of the pleadings, depositions, answers to interrogatories, admissions on file, and any affidavits that it believes demonstrate the absence of a genuine issue of material fact. See Celotex Corp., 477 U.S. at 323.
Once the movant has discharged its initial burden under Rule 56, the nonmovant must set forth specific facts, by affidavits or otherwise, showing that there is a genuine issue for trial. See Topalian v. Ehrman, 954 F.2d 1125, 1132 (5th Cir. 1992), cert. denied, 506 U.S. 825 (1992). In weighing the evidence, the court must decide all reasonable doubts and inferences in the light most favorable to the nonmovant. See Walker v. Sears, Roebuck Co., 853 F.2d 355, 358 (5th Cir. 1988); Thornbrough v. Columbus Greenville R.R. Co., 760 F.2d 633, 640 (5th Cir. 1985); Eastman Kodak v. Image Technical Services, Inc., 504 U.S. 451, 456-58, (1992). As long as there appears to be some support for the disputed allegations such that "reasonable minds could differ as to the import of the evidence," the motion for summary judgment must be denied. Anderson, 477 U.S. at 250.
B. Tittle VII
1. Race Discrimination
As to her discrimination claim, Gillespie asserts that Defendants discriminated against her because of her race. Specifically, Gillespie claims that she was "the only Black person treated in a manner that no other white person was treated." Plaintiff's Original Complaint at 3. In her first EEOC charge, Gillespie stated that her personal harm included:
1.1 I was given disciplinary action on February 22, 2000.
1.2 I was given an unfair evaluation on February 23, 2000.
1.3 I was denied annual and sick leave.
1.4 Mike Porkinhorn refer to me as "dummy" and he called me "girl".Defendants' Summary Judgement Appendix at 83-84. The Court shall address each of Gillespie's assertions in turn.
Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of race, color, religion, sex, or national origin in federal and private employment. 42 U.S.C. § 2000e-2(a); Fitzgerald v. Secretary, United States Department of Veterans Affairs, 121 F.3d 203, 206 (5th Cir. 1997). Absent direct evidence of discrimination, Gillespie's race discrimination claim must comport with the three-step test articulated in McDonnell Douglas Corporation v. Green, 411 U.S. 792, 802-05 (1973). See St. Mary's Honor Center v. Hicks, 509 U.S. 502, 506-12 (1993).
Accordingly, with respect to the first part of the test, Gillespie must establish a prima facie case of discrimination. See Pratt v. City of Houston, Texas, 247 F.3d 601, 606 (5th Cir. 2001). If Gillespie makes a prima facie showing, then a presumption of discrimination arises. Id. In the second part of the test, Defendants can rebut this presumption of discrimination by proffering a legitimate, nondiscriminatory reason for the employment action. Id. If Defendants successfully carry their burden, then the case thereby proceeds to the third part of the test. Bodenheimer v. PPG Industries, Inc., 5 F.3d 955, 957 (5th Cir. 1993). At this stage, Gillespie then has the burden to establish that Defendants' proffered reason is in fact a pretext for race discrimination. Pratt, 247 F.3d at 606. Furthermore, in order to escape summary judgement at this stage, Gillespie must produce evidence from which a fact finder could find "that the employer's reasons were not the true reason for the employment decision and that unlawful discrimination was." Luckman v. United Parcel Service, 2001 U.S. Dist. LEXIS 13555, citing, Bodenheimer, 5 F.3d at 957.
Gillespie claims that she was given unwarranted disciplinary action on February 22, 2000. On its face, her disciplinary action does not create a prima facie case of discrimination. But assuming arguendo, the burden shifts to Defendants to articulate a legitimate non-discriminatory reason for the disciplinary action. Defendants counter-argue that such action was warranted because Gillespie failed to notify her supervisor when she was absent from work (a fact which Gillespie herself admits in deposition). As a result, Gillespie received a written employee discipline report on February 22, 2000. Defendants' Summary Judgement Appendix (Gillespie Deposition Vol. I, p. 61-62, 73-74; Vol. II, p. 63-64, App. p. 8-9, 10-11, 32). Also, Gillespie's February 22, 2000 discipline report contains several noteworthy written comments, which mention in part that:
[Gillespie] has used all available sick leave (missed about 18-19 days) in the last year.
[Gillespie] has missed an excessive amount of work days, her attendance must improve immediately.
Failure to improve in respect to notification of supervisor(s) of the need for sick leave will result in Disciplinary Suspension.Id.
Gillespie has countered with no evidence establishing that Defendants proffered reasons for her disciplinary action were a pretext for race discrimination. In fact, these written comments reveal that Gillespie's absenteeism was problematic even before the disciplinary action was taken. Excessive absenteeism, coupled with a failure to notify one's employer when absent from work, appear to substantiate the disciplinary action taken by Defendants.
Gillespie also claims that she was given an unfair (or an unnecessarily low) job evaluation on February 23, 2000. According to the evaluation, Gillespie's supervisors rated her overall job performance to be a four out of seven, with a rating of four considered effective and seven considered outstanding. Defendants' Summary Judgement Appendix (Gillespie Deposition Vol. I, p. 79, App. p. 12). Conversely, Defendants claim that Gillespie's poor attendance kept her from earning higher job rating. However, the above mentioned disciplinary action taken against Gillespie (which occurred just one day prior to the action in question) appears to lend support to Defendants' argument. That is, if Gillespie genuinely believed that she should have merited a higher job evaluation instead of receiving an "effective" performance rating, then it seems likely that her poor attendance record was to blame. Given the facts, the Court strains to identify the unfairness surrounding her performance rating.
Gillespie also argues that she was racially discriminated against with regard to taking vacation and sick time. According to Gillespie, she had problems taking vacation and sick time when needed, but her white coworkers did not. Yet Defendants contend that Gillespie's excessive absenteeism exhausted any annual or sick time which would have been available to her. Defendants' personnel policy permits full-time employees to accrue annual and sick leave for each pay-period. Thereby, employees may be compensated although they are on leave. Gillespie's deposition testimony supports Defendants' argument, revealing that during the year 2000 her absenteeism exhausted the annual or sick leave available to her. Defendants' Summary Judgement Appendix (Gillespie Deposition Vol II, p. 52-53, App. p. 31). Also, when questioned concerning which of her white coworkers were unfairly permitted to take leave, Gillespie stated that she could not specifically name anyone who was treated differently than she, nor could Gillespie state whether or not those employees who were granted leave had accrued such time. Id Gillespie's written disciplinary warning on August 11, 2000 reveals her sick leave status at that time, mentioning in part that:
The records indicate you have missed 133 hours of work due to sick leave since January 1, 2000. The meeting we had in conjunction with the disciplinary warning you received on 2-22-2000 failed to result in any improvement in your attendance. You have missed 118 hours since the warning, and exhibit no attempt to improve the situation.Id.
The above statements appear to illustrate that dissatisfaction with Gillespie's excessive absenteeism stretched throughout her employment evaluations for that year.
As the final part of her racial discrimination claim, Gillespie asserts that Mike Polkinhorn called her "dummy" and "girl." Polkinhorn denies calling Gillespie "dummy" but admits that he referred to her as "girl." Polkinhorn stated that he used the term girl in a cordial manner, and Gillespie and her coworkers routinely referred to each other as girl. Defendants' Summary Judgement Appendix (Polkinhorn Affidavit. App. p. 54). Use of the term "girl" alone does not on its face signify a derogatory racial reference. "Girl", as a colloquialism, is indeed widely used in contemporary society, from talk shows to television programs or even advice columns. Furthermore, Gillespie has offered nothing further which would lend support to her charge of racial discrimination. A Tittle VII plaintiff must produce more than a "mere refutation of the employer's legitimate non-discriminatory reason" to avoid summary judgment. Moore v. Eli Lilly Co., 990 F.2d 812, 815 (5th Cir. 1993). Gillespie's habitual absenteeism appears to be the most salient and dispositive factor concerning her claim. Her personal harm, whatever it may be, appears self-inflicted and self-perpetuated. As a result, this Court is of the opinion that Gillespie has failed to rebut the legitimate non-discriminatory reasons for the actions taken against her. Consequently, Gillespie's racial discrimination claim fails to withstand summary judgment.
2. Retaliation, Harassment and Hostile Work Environment
There is a three-part test to establish a prima facie case for retaliation under Title VII. Accordingly, Gillespie must demonstrate that (1) she engaged in an activity protected by Title VII; (2) an adverse employment action occurred; and (3) a causal link existed between the protected activity and the adverse employment action. See Mattern v. Eastman Kodak Co., 104 F.3d 702, 705-07 (5th Cir. 1997), cert denied, 522 U.S. 932 (1997). To satisfy the second part of the prima facie case Gillespie must show that Defendants made an "ultimate employment decision" adversely affecting her. Id. Ultimate employment decisions include "hiring, firing, granting leave, discharging, promoting, and compensation." Id.
Regarding Gillespie's retaliation claim, she essentially argues that she never had any trouble with Defendants until she filed her discrimination claims. Specifically, in Gillespie's second EEOC complaint, she alleged:
a. She received an effective minus rating on her second performance evaluation, which resulted in her not earning a pay raise.
b. She further complained that Mike Polkinhorn called her "girl", and the office has become a hostile environment.
c. She complained about having to perform other employee's work assignment.
These actions, according to Gillespie, were the result of her previously filing a discriminatory charge with the EEOC. The Court notes that Gillespie's filling of a discrimination claim with the EEOC is a protected activity. However, Defendants argue that Gillespie cannot establish a prima facie case because there existed no causal connection between her protected activity and the actions of which she complained. Defendants counter-argue that Gillespie's low performance rating and lack of a pay raise were due to her excessive absenteeism (which continued to deteriorate between her first and second evaluations). Furthermore, Defendants mention that all other employees who received an "effective minus" performance rating also failed to earn a pay raise. As to Gillespie's claim that she had to perform other employee's work assignments, Defendants argue that Gillespie was merely asked to cover for coworkers when they were out to lunch or absent. According to Defendants, Gillespie was asked to cover for her coworkers even as a temporary employee, long before she filed her complaints. Gillespie's deposition testimony attests that she was asked to do these tasks even as a temporary employee. Defendants' Summary Judgement Appendix (Gillespie Deposition Vol. I, p. 123-24, App. P. 19). Given the facts, Gillespie's claims do not amount to adverse employment actions. Tittle VII was "designed to address ultimate employment decisions, not to address every decision made by employers." Dollis v. Rubin, 77 F.3d 777, 781 (5th Cir. 1995).
Gillespie further maintains that her work environment became hostile after she filed her EEOC claims. In establishing a prima facie case for hostile work environment, Gillespie must demonstrate that: (1) she is a member of a protected class; (2) Defendants subjected her to harassment; (3) the harassment was predicated on Gillespie's race; (4) the harassment adversely affected a term, condition or privilege of employment; and (5) Defendants knew or should have known about the harassment but neglected to take immediate remedial action. Skinner v. Brown, 951 F. Supp. 1307, 1321 (S.D. TEX. 1996), aff'd, 134 F.3d 368 (5th Cir. 1997). Furthermore, Gillespie must demonstrate that her work environment was "so heavily polluted with discrimination as to destroy completely the emotional and psychological stability of minority . . . workers. . . ." See Vaughn v. Pool Offshore Co., 683 F.2d 922, 924 (5th Cir. 1971). Gillespie's complaints of a harassment include:
— her office was cold;
— the women's restroom had a leaking toilet;
— there was a gas leak, which caused gas fumes to emanate;
— her office chair was uncomfortable;
— Mike Polkinhorn "followed her" to hear her speak about the availability of Dallas Housing Authority's health insurance to employees.
In response, Defendants simply counter that Gillespie's complaints were not "done to her" specifically, nor in an attempt to retaliate against her for filling her EEOC complaints. At the risk of appearing conclusory, this Court is of the opinion that Gillespie's complaints, at least on their face, do not qualify as evidence of harassment or ultimate employment actions. In fact, the first four of Gillespie's complaints can be attributed to the very building in which this Court sits, yet it would surely strain credibility to assume that they are used as a means to retaliate against an employee. Quite simply, there is nothing surrounding these complaints which suggest that they were designed to harass Gillespie, thereby causing her emotional or psychological instability. Leaky toilets, cold offices, or uncomfortable chairs, are commonplace inconveniences in almost any office-type environment. Taken alone, they fail to constitute evidence of a "hostile work environment."
In her third EEOC claim, Gillespie asserted that she was terminated from her job and denied pay while on sick leave because she previously filed an internal grievance and charges of discrimination. Conversely, Defendants argue Gillespie's termination was clearly warranted because Gillespie's job called for her to work with computers, yet she refused to sign a required Electronic Communications Acknowledgment Form. Furthermore, Defendants assert that Gillespie's lack of pay during sick leave was warranted because she (as previously discussed) exhausted her sick and annual leave pay. As colorful and amusing as Gillespie's complaints of retaliation maybe, the Court identifies no connection between any action she complains of and her grievance complaints and EEOC filings. Consequently, her retaliation and hostile work environment claims do not withstand summary judgment.
3. Gender Discrimination
Gillespie also asserts that Defendants subjected her to gender discrimination. Gillespie argues that she was "the only female harassed . . . because she spoke out against the nepotism taking place at DHA." Plaintiffs Original Complaint at 4. As Defendants correctly point out, Gillespie did not mention this particular claim in her prior charges of discrimination, nor ever allege or allude to gender discrimination. As a result, the Court need go no further and articulate the standards under Tittle VII for a prima facie gender discrimination claim. Rather, the Court concurs with Defendants, and holds that Gillespie's gender discrimination exceeds the scope of her petition and should be dismissed. Clemmer v. Enron Corp., 882 F. Supp. 606, 609-10 (S.D. Tex. 1995); Lee v. Kroger Co., 901 F. Supp. 1218, 1224 (S.D. Tex. 1994).
C. Invasion of Privacy
Gillespie argues an invasion of privacy claim against Defendants. Her claim specifically states:
INVASION OF PRIVACY: DHA terminated Ms. Gillespie because she would not waive her rights to privacy as ordered by Polkinhorn, Manning and Lott when she was ordered to let the DHA film and video her for eight hours a day. The fact that Ms. Gillespie refused the demand caused her current and future damage with the loss of her income.Plaintiff's Original Petition at 4.
Basically, Gillespie argues that Defendants installed a video camera in the direction of her office (in order to observe her) and that the Defendants Electronic Communications Systems Acknowledgment Form was an "order" permitting Defendants to video her eight hours a day. Defendants counter-argue that the camera was mounted in plain view in a common hallway, and Gillespie had no reasonable expectation of privacy in that area.
Whether a public employee has a reasonable expectation of privacy in his or her workplace must be determined on a case by case basis. See O'Connor v. Ortega, 480 U.S. 709, 718 (1987). "The expectation of privacy is measured both subjectively and objectively." See Price v. City of Terrell, 2000 U.S. Dist. LEXIS 18588. Assuming that Gillespie had an expectation of privacy in her office (which she shared with another employee), she would certainly have no objectively reasonable expectation of privacy in the common hallway. Being an undifferentiated area, all employees used the common hallway. Moreover, the video camera was mounted in plain view. It would seem unreasonable for Gillespie to have an expectation of privacy under such circumstances. In addition, Gillespie's argument that the Electronic Communications Systems Acknowledgment Form was an order permitting Defendants to video record her throughout the day falls flat. A review of the document suggests that it is designed to safeguard Defendants communications systems.
Lastly, Gillespie's original petition named Mike Polikinhorn, Bill Manning, and Ann Lott as individual Defendants. Gillespie asserts that the actions of these individuals (i.e. retaliation, harassment and hostile work environment, race discrimination, and gender discrimination) were performed within the scope of their employment. However, as Defendants correctly point out, there is no individual liability under Tittle VII. Huckabay v. Moore, 142 F.3d 233, 241 (5th Cir. 1998). Thus, Gillespie's individual claims against these individuals must be dismissed.
III. CONCLUSION
For the reasons stated herein, Defendants Motion for Summary Judgment is GRANTED.