Opinion
No. 3:98-CV-0982-M.
October 20, 2000.
MEMORANDUM OPINION AND ORDER
Plaintiffs sue for race discrimination and retaliation in violation of TEX. LAB. CODE ANN. § 21.051 and the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-2(a), 3(a) (part of "Title VII"); due process and free speech deprivations and a deprivation of rights guaranteed by 49 U.S.C. § 5333(b) (part of the Urban Mass. Transportation Act, or "UTMA"), in violation of 42 U.S.C. § 1983; conspiracy to deprive the Plaintiffs of due process rights, and those rights secured by the UTMA, all in violation of 42 U.S.C. § 1985(3); and the intentional infliction of emotional distress.
Ms. Amalia D. Johnson was substituted as party plaintiff to this action in place of Thurmond L. Johnson, now deceased, by Order of May 12, 1998. This Court recognizes the substitution, notwithstanding Plaintiffs' Amended Complaint, filed November 2, 1998, which asserts claims by Plaintiffs Joseph Reynolds and Thurmond Johnson, with no mention of Ms. Johnson.
In its summary judgment motion, DART addresses what it makes out to be a claim challenging the legality of its affirmative action plan. While Plaintiffs criticize DART's affirmative action plan in their Amended Complaint, this Court finds that a Claim challenging that plan has not been sufficiently pleaded and it does not recognize that such a claim is a part of this case.
Before the Court is Defendant DART's Motion for Summary Judgment, filed October 27, 1999, on all claims but the Title VII retaliation claim, all briefs in support of the motion, and all responses and replies thereto.
Plaintiffs' Amended Complaint, filed more than eighteen months ago, joined Roger Snoble, Ben Gomez, Victor Burke, and Sam Turner, all upper-management employees at DART, as new parties. There is no evidence in the record that service on these parties has been effectuated, and they have not answered the Amended Complaint. The Court thus DISMISSES these individual defendants from this case. Bann v. Ingram Micro, Inc., 108 F.3d 625, 626 (5th Cir. 1997).
In its motion of October 27, 1999, DART did not move for summary judgment on Johnson's retaliation claim. However, in its reply to the Plaintiffs' response to the Motion for Summary Judgment, filed March 8, 2000, DART alludes to the retaliation claim and offers a brief argument in support of summary judgment on that claim. To the extent that this brief reference and argument by DART could be construed as a motion for summary judgment on Johnson's retaliation claim, it is untimely. The dispositive motion deadline in this case was October 1, 1999. DART filed its Motion for Summary Judgment on October 1. 1999, but that motion was "unfiled." After correcting sonic technical problems with its October 1, 1999 motion filing, DART obtained leave of Court to file its summary judgment motion on October 27, 1999, but subsequent leave has not been sought.
Having considered the record and applicable law, for the reasons stated below, the Court GRANTS IN PART and DENIES IN PART Defendant's Motion for Summary Judgment.
I. The Summary Judgment Standard
Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is appropriate when the pleadings and record evidence show that no genuine issue of material fact exists and that, as a matter of law, the movant is entitled to judgment. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir, 1994). A material fact is one that "might affect the outcome of the suit under the governing law" and a "dispute about a material fact is "genuine" . . . if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
In a motion for summary judgment, the burden is on the movant to prove that no genuine issue of material fact exists, and if the movant fails to meet its burden, the motion must be denied, regardless of the nonmovant's response. Little, 37 F.3d at 1075. If, however, the movant does meet its burden, then the nonmovant must go beyond the pleadings and "designate specific facts showing that there is a genuine issue for trial." Id. The record before the court must be considered in the light most favorable to the nonmovant. Harrison v. Byrd, 765 F.2d 501, 504 (5th Cir. 1985).
II. The Alleged Section 1983 and 1985 Violations
In order to establish a claim under § 1983, Plaintiffs must show that: (1) a person, (2) acting under color of state law, (3) deprived them of a right secured by the Constitution or laws of the United States. 42 U.S.C. § 1983. In order to prove a claim under 42 U.S.C. § 1985 (3), Plaintiffs must show: (1) a conspiracy involving two or more persons; (2) for the purpose of depriving them, directly or indirectly, of the equal protection of the laws; and (3) an act in furtherance of the conspiracy; (4) which causes injury to a person or property, or a deprivation of any right or privilege of a citizen of the United States. Hilliard v. Ferguson, 30 F.3d 649, 652-53 (5th Cir. 1994). Thus, both §§ 1983 and 1985 involve claims against "a person" or "persons." Two courts in this district have held that DART is not a "person" within the meaning of either §§ 1983 or 1985 but is, instead, a political subdivision of the state of Texas and therefore not amenable to suit under those statutes. Anderson v. Dallas Area Rapid Transit, 1998 WL 686782, at *7 (N.D. Tex. 1998), aff'd, 180 F.3d 265 (5th Cir. 1999); Tolbert v. Vasquez, 1998 U.S. Dist. LEXIS 17616, at *19-20 (N.D. Tex.), aff'd, 163 F.3d 1355 (5th Cir. 1998). DART is a transportation authority created pursuant to TEX. TRANSP. CODE ANN. § 452,001 et seq. As a transportation authority, DART is a "governmental unit," TEX. TRANSP. CODE ANN. § 452.052(c), which term includes political subdivisions of the state of Texas. TEX. CIV. PRAC. REM. CODE ANN, § 101.001. However, as the court noted in Young v. Dallas Area Rapid Transit, 1999 WL 197917, at *1 (N.D. Tex. 1999), since Anderson and Tolbert are unpublished opinions, they are generally not of precedential value. The issue of whether DART is a political subdivision does not necessarily determine whether it is a "person" within the meaning of §§ 1983 and 1985. See Young, 1999 WL 197917, at *2. To answer that question, the Court must decide whether DART is "more akin" to a local governing body, which is considered a "person" under either §§ 1983 or 1985, or to an "`arm or alter ego of the state,'" which is not considered a "person" tinder those statutes. Id. While the Court recognizes that this issue is a question of law for the Court to decide, the parties' briefing and evidence on it is not sufficiently detailed. The Court will thus DENY Defendant's summary judgment motion on the §§ 1983 and 1985 claims, without prejudice to DART reurging its position at or after trial, assuming further proof will be offered on the issue.
The Court notes that the Fifth Circuit has identified several factors by which to determine whether an agency is an "arm of the state" for Eleventh Amendment immunity purposes. Clark v. Tarrant County, 798 F.2d 736, 744-45 (5th Cir. 1986). These factors include (1) whether the state statutes and case law view the agency as an arm of the state; (2) the source of the entity's funding; (3) the entity's degree of local autonomy; (4) whether the entity is concerned primarily with local, as opposed to statewide, problems; (5) whether the entity has the authority to sue and be sued in its own name; and (6) whether the entity has the right to hold and use property.
DART also argues that its Motion for Summary Judgment should be granted on the §§ 1983 and 1985 claims because those claims are barred by the applicable statute of limitations. The Court, however, finds that there arc disputed material facts as to the statute of limitations issue.
III. The Alleged Intentional Infliction of Emotional Distress
Plaintiffs seek damages for DART's alleged intentional infliction of emotional distress. However, Plaintiffs' claims for intentional infliction of emotional distress are barred by governmental immunity. Tolbert v. Vasquez, 1998 U.S. Dist. LEXIS 17616, at *18-19 (N.D. Tex.), aff'd, 163 F.3d 1355 (5th Cir. 1998). A state agency cannot be sued for the torts of its employees except as specifically provided in the Texas Tort Claims Act. Brown v. Houston Indep. School Dist., 763 F. Supp. 905, 908 (S.D. Tex. 1991), aff'd, 957 F.2d 866 (5th Cir. 1992), cert. denied, 506 U.S. 868 (1992). In Delaney v. University of Houston, 835 S.W.2d 56, 58 (Tex. 1992), the Texas Supreme Court clarified how to determine whether a claim is barred by immunity under the Texas Tort Claims Act: "[I]f a claim is barred by immunity, but immunity is waived under sections 101.021-022 of the [Texas Tort Claims] Act, action is still prohibited if the claim falls within the section 101.057(2) exception. If. however, a claim is not barred by immunity, neither the waiver of immunity by the Act, nor the exceptions to that waiver, are relevant." The Texas Tort Claims Act waives immunity under limited circumstances, pursuant to sections 101.021-.022, but it also provides for exceptions to waiver for claims arising out of, among other things, any intentional tort, pursuant to § 101.057(2). In fact, case law interpreting § 101.057(2) has clarified that it should be liberally construed to accomplish its objective of shielding governmental units from claims arising out of intentional torts committed by governmental employees. Gillum v. City of Kerrville, 3 F.3d 117, 123 (5th Cir. 1993), cert. denied, 510 U.S. 1072 (1994). Since these claims are for intentional torts and DART is a governmental unit, DART is, as a matter of law, immune from Plaintiffs' intentional infliction of emotional distress claims and such claims are, therefore, DISMISSED.
In the alternative, if Plaintiffs' intentional infliction of emotional distress claims were not barred due to governmental immunity, this Court would nevertheless grant summary judgment for DART on these claims.
The elements of an intentional infliction of emotional distress claim in Texas are: (1) the defendant acted intentionally or recklessly; (2) the conduct was extreme and outrageous; (3) the defendant's actions caused the plaintiff emotional distress; and (4) the emotional distress that the plaintiff suffered was severe. City of Midland v. O'Bryant, 18 S.W.3d 209, 216 (Tex. 2000). This Court must determine as a threshold matter whether "the defendant's conduct may reasonably be regarded as so extreme and outrageous as to permit recovery," Id. at 216-17 (citation omitted). To be "extreme and outrageous," conduct must be "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." Id. at 217 (citation omitted)
The Court notes that the Texas Supreme Court's decision on an intentional infliction of emotional distress claim in Morgan v. Anthony, 2000 WL 1206708 (Tex. Aug. 24. 2000), stands in sharp contrast to this case. The court there found conduct to be extreme and outrageous where a man who stopped to help a woman having car problems on a stretch of rural highway repeatedly threatened and harassed her, despite her repeated requests that he leave her alone.
An even stricter approach is taken with regard to intentional infliction of emotional distress claims in employment disputes. GTE Southwest, Inc. v, Bruce, 998 S.W.2d 605, 612 (Tex. 1999); Johnson v. Merrell Dow Pharms., Inc., 965 F.2d 31, 34 (5th Cir. 1992). Texas courts recognize that to manage its business properly, an employer must be able to supervise, review, criticize, demote, transfer, and discipline employees. GTE Southwest, Inc., 998 S.W.2d at 612.
To establish a cause of action for intentional infliction of emotional distress in the workplace, an employee must prove the existence of some conduct that brings the dispute outside the scope of an ordinary employment dispute and into the realm of extreme and outrageous conduct.Id. at 613.
The range of behavior encompassed in "employment disputes' is broad, and includes at a minimum such things as criticism, lack of recognition, and]ow evaluations, which although unpleasant and sometimes unfair, are ordinarily expected in the work environment.Id. The kind of extreme conduct necessary to raise a fact question on an intentional infliction of emotional distress claim in the workplace "exists only in the most unusual of circumstances."
Id.
Plaintiffs in this case present no evidence of conduct that rises to the level of "extreme and outrageous." Reynolds asserts that he did not receive a promotion, and that the position was given to a less qualified person. Plaintiff Johnson mentions a series of actions, including that his "mere five percent raise in salary" did not keep up with the salary of a minority colleague, that he did not get the promotion he wanted, that DART threatened to fire him if he attended a seminar even though other employees went to such seminars, that he did not receive adequate guidance, that he was criticized in front of others, and that he was ultimately terminated. While such actions may have justifiably upset the Plaintiffs, as a matter of law they do not rise to the level of extreme and outrageous conduct which is necessary to support a claim for intentional infliction of emotional distress. See, e.g., City of Midland, 18 S.W.3d at 217 ("Even the wrongful transfer, failure to promote, or termination of an employee does not, standing alone, constitute intentional infliction of emotional distress."); Southwestern Bell Mobile Sys. v. Franco, 971 S.W.2d 52, 54 (Tex. 1998) (finding no extreme or outrageous conduct where employees were terminated and forced to remove their belongings in the presence of coworkers and had their cell phones repossessed); Diamond Shamrock Ref. and Mktg. Co. v. Mendez, 844 S.W.2d 198, 202 (Tex. 1992) (finding no outrageous conduct where employee claimed that company falsely depicted him as a thief). The alleged actions by DART are not sufficiently outside the parameters of an ordinary employment dispute to constitute outrageous behavior; therefore, even if DART were not immune from Plaintiffs' claims of intentional infliction of emotional distress, this Court would nevertheless dismiss such claims.
IV. Discrimination Claims
Having addressed Plaintiffs' claims for intentional infliction of emotional distress and those claims brought pursuant to 42 U.S.C. § 1983 and 1985, this Court will now analyze DART's Motion for Summary Judgment on Plaintiffs' discrimination claims, first describing the alleged facts supporting these claims.
A. As to Reynolds
In the summer of 1991, DART employed Joseph Reynolds as a Contract Administrator. On or about July 5, 1994, Reynolds applied for a position as Contracts Administrator II ("CA II"). Reynolds and the three other candidates for that position interviewed with a three-member panel, which then ranked them from most to least qualified. As a result of combining their individual evaluations, the panel ranked Bernardo Lastre, a Hispanic, first, and Reynolds, a Caucasian, third. The position was subsequently offered to Lastre. On August 9, 1994, DART sent Lastre a letter congratulating him on his new position.
On or about August 17, 1994, Reynolds filed a grievance with DART, requesting either that all the candidates but Lastre compete again for the CA II position, or that Reynolds receive the higher wages he would have obtained as a CA II. Reynolds contends that the grievance was based on information Reynolds learned that Lastre falsified his job application and misrepresented his level of education, area of study, salary history, and job experience. Reynolds claims that he followed the grievance process through a myriad of steps, but ultimately received no relief. On or about February 2, 1995, while still engaged in this grievance process. Reynolds filed a charge with the Equal Employment Opportunity Commission ("EEOC"), alleging that he had been discriminated against in violation of Title VII. having been denied a job promotion on the basis of his race. He also filed a similar charge with the Texas Commission on Human Rights.
According to Reynolds, despite his complaints about Lastre and his proof supporting those complaints, management at DART, including Ben Gomez and Robert Vasquez, did not promote him to the CA II position. Reynolds further claims that at each step of the grievance process, DART managers were advised by other Hispanics, who sought to promote Hispanics over other ethnic groups.
B. As to Johnson
DART employed Thurmond L. Johnson as a Contracting Officer from March 1990 until November 1996. One month after it hired Johnson, DART hired Robert Vasquez to fill a position superior to Johnson's position. Victor Burke supervised both Vasquez and Johnson. Burke demoted Vasquez in 1993, but did not decrease his salary or benefits to a level commensurate with the demotion. Johnson notes that he was receiving promotions while Vasquez was receiving demotions, but that DART nevertheless continued to pay Vasquez almost thirty percent more than Johnson was paid, although he and Vasquez were at the same job level. Johnson claims that in spring of 1994, he requested that Burke increase his salary to match that of Vasquez, but, in April 1994, Burke increased Johnson's salary by only five percent, still considerably less than Vasquez was paid.
Johnson asserts that, from July 1994 to September 1994, he requested a promotion to the position of Vice President of Contracts. However, in September 1994. DART hired for that position Sam Turner, an African American male who Johnson claims was less qualified. Johnson further contends that in October 1994, he confronted Burke about the disparity between his pay and that of Vasquez, and that Burke responded that Vasquez's pay had not been reduced due to "[H]ispanic political concerns." In February 1995, Johnson filed an EEOC complaint and an internal grievance at DART, complaining of race and age discrimination. In November 1996, Turner terminated Johnson. Johnson contends that he continued through the internal grievance process, which culminated in a meeting with Roger Snoble, DART's Executive Director, who refused to reinstate him. Johnson also asserts that he was eventually replaced by James Peña, an allegedly less qualified Hispanic male.
The age discrimination charge has not been pursued.
V. Analysis
Plaintiffs complain that DART discriminated against them on the basis of race. TEXAS LABOR CODE § 21.051 (part of the Texas Commission on Human Rights Act or "TCHRA"), provides that:
An employer commits an unlawful employment practice if because of race, color, disability, religion, sex, national origin, or age the employer:
(1) fails or refuses to hire an individual, discharges an individual, or discriminates in any other manner against an individual in connection with compensation or the terms, conditions, or privileges of employment; or
(2) limits, segregates, or classifies an employee or applicant for employment in a manner that would deprive or tend to deprive an individual of any employment opportunity or adversely affect in any other manner the status of the employee.
The law governing claims under the TCHRA and Title VII is identical. Shackelford v. Deloitte Touche, LLP, 190 F.3d 398, 403-04 n. 2 (5th Cir. 1999). Thus, when analyzing Plaintiffs' claims, this Court will apply the burden-shifting structure set out by the United States Supreme Court in Title VII discrimination cases. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973); Byers v. Dallas Morning News, Inc., 209 F.3d 419, 425-26 (5th Cir. 2000). Under this structure, the plaintiff must first prove a prima facie case of discrimination by a preponderance of the evidence. Texas Dep't. of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53 (1981). Should the plaintiff make out his prima facie case, the burden of production shifts to the defendant to articulate a legitimate, non-discriminatory reason for the employment action. Burdine, 450 U.S. at 253; Byers, 209 F.3d at 425. If the employer gives a legitimate, non-discriminatory reason for the employment action, the plaintiff must prove, by a preponderance of the evidence, that the proffered reason was a mere pretext for discrimination. Byers, 209 F.3d at 425-26.
A. DART's Alleged Discrimination Against Reynolds
Reynolds complains that DART discriminated against him on the basis of his race when it denied him a promotion to the CA II position. Absent direct evidence of discrimination based on race, the Fifth Circuit has applied the McDonnell Douglas burden-shifting structure in a Title VII reverse race discrimination case. Byers, 209 F.3d at 425. Under the McDonnell Douglas framework, Reynolds must first establish a prima facie case of discrimination. Id. If Reynolds satisfies the prima facie test, DART must then provide some legitimate, non-discriminatory reason for its failure to promote Reynolds. Id. If DART does so, Reynolds must then prove, by a preponderance of the evidence, that the proffered reason was a mere pretext for discrimination. Id. at 425-26.
This Court notes the recent United States Supreme Court decision of Reeves v. Sanderson Plumbing Prods., Inc., 120 S.Ct. 2097 (June 12, 2000). The Court in Reeves reversed the appellate court's decision, which had "proceeded from the assumption that a prima facie case of discrimination, combined with sufficient evidence for the trier of fact to disbelieve the defendant's legitimate. non-discriminatory reason for its decision, is insufficient as a matter of law to sustain a jury's finding of intentional discrimination." Id. at 2108. The Court in Reeves held that "a plaintiffs 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 employer unlawfully discriminated." Id. at 2109. Although Reeves involved an ADEA claim, this Court concludes that the analysis in Reeves applies to Title VII claims as well.
In order to establish a prima facie case of reverse discrimination based on race, Reynolds must prove (1) he is a member of a protected group; (2) he was qualified to be promoted and applied to be promoted to an available position; (3) he was not selected despite his qualifications; and (4) DART filled the position with a person not in Reynolds' protected group. See Byers, 209 F.3d at 426 (setting out the prima facie test for reverse discrimination based on race in the context of the plaintiffs termination); Mills v. Health Care Serv. Corp., 171 F.3d 450, 454 (7th Cir. 1999).
Addressing the first prong of the prima facie test, the Fifth Circuit recently clarified that a plaintiff need not show that he was a "racial minority in his workplace," but rather, that he was a member of a "protected group." Byers, 209 F.3d at 426. Based on Byers, presumably all racial groups are thus protected.
As to the first prong of the prima facie test, it is undisputed that Reynolds is Caucasian. The plaintiff in Byers was a white male alleging, among other things, reverse discrimination based on his race under Title VII. Byers, 209 F.3d at 422. The court in Byers noted that the parties disputed whether the plaintiff had met the first and fourth prongs of the prima facie test. Id. at 426. Addressing the first prong, the court in Byers held that the fact that the plaintiff "was not a racial minority in his workplace does not prevent him from making a prima facie case of reverse discrimination under Title VII." Id. The court then moved on to its analysis of the fourth prong, thus implying that the plaintiff had satisfied the first prong. Id. As the court in Allison v. City of Fort Worth, 60 F. Supp.2d 589, 593 n. 2 (N.D. Tex. 1999) stated, "Title VII is not limited to discrimination against members of any particular race." Indeed, "it is well settled law that the protections of Title VII are not limited to members of historically discriminated against groups." Mills, 171 F.3d at 454 (citing McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 280 (1976)). As to the second and third prongs of the prima facie test, the parties do not seem to dispute that Reynolds was qualified for the CA II position, that he applied for the position, and that he was not selected for the position despite his qualifications. Finally, because Lastre is Hispanic and therefore outside Reynolds' protected group, Reynolds has satisfied the fourth prong of the prima facie test.
Because Reynolds has satisfied the prima facie test, DART must provide a legitimate, non-discriminatory reason for its failure to promote Reynolds to the CA II position. Byers, 209 F.3d at 425. DART states that it selected Lastre — instead of Reynolds or any of the other applicants — because it believed Lastre to be the best qualified person for the job after a three-member selection panel interviewed and evaluated all four candidates.
The record evidence is that the three-member selection panel filled out, for each of the four candidates, evaluation forms covering seven categories. As to each category, the applicants were rated on a scale of from one to five. One of the seven categories was "Education." In this category, two of the panel members, Vasquez and Al Brunson, gave Lastre a score of three, while the other panel member, Kathy Quinby, gave him a score of four. Lastre's total score of 78 was the highest. The evidence further reveals that when the panel members made their evaluations, they believed that Lastre had a bachelor's degree in engineering science. In fact, Quinby specifically noted in the "Education" section of her evaluation form that Lastre had an engineering degree. Lastre's resume reflected that he had a Bachelor of Science in Engineering degree, with a major in mechanical engineering and a minor in business administration. Although the record indicates that by the end of 1994, DART knew that Lastre did not have a Bachelor of Science in Engineering degree, there is no evidence that that information came to DART's attention before the decision to promote Lastre was made. DART thus has established a legitimate, non-discriminatory reason for its decision.
Reynolds must thus prove, by a preponderance of the evidence, that DART's proffered non-discriminatory reason is merely a pretext. Byers, 209 F.3d at 425-26. Reynolds' attempts to do so by urging that DART came to know, after it promoted Lastre, that he falsified his educational background, but it failed to act upon this new information. That evidence is irrelevant to a showing that DART's proffered reason for its prior decision to promote Lastre is pretextual. The record is undisputed that when DART promoted Lastre to the CA II position, he had the highest comprehensive score of the four candidates. Reynolds does not point to any evidence that undermines that explanation for the promotion. DART's summary judgment motion on Reynolds' race discrimination claim is thus GRANTED.
B. DART's Alleged Discrimination Against Johnson
Johnson alleges that DART should have paid him at least as much as Vasquez in light of the fact that they were at the same job level and DART was promoting him while demoting Vasquez. Johnson further alleges that DART's discharge of him was discriminatory.
1. Disparity In Pay
Johnson can make out a prima facie case as to the alleged disparity between his salary and Vasquez's salary by showing that he was paid less than Vasquez for performing the same job. Plemer v. Parson-Gilbane, 713 F.2d 1127, 1137 (5th Cir. 1983). By affidavit of Victor Burke, Johnson presented evidence that he was making significantly less as a Director (of Contracts Construction) than Vasquez was making as a Director (of Contracts Systems and Operations). The summary judgment evidence further indicates that both Director positions were at the same grade level. Thus, Johnson has established his prima facie case of race discrimination.
The burden thus shifts to DART to articulate a legitimate, non-discriminatory reason for the disparity in pay between Johnson and Vasquez. To do so, DART must offer evidence that, if believed, would permit the trier of fact to conclude that the disparity in pay was nondiscriminatory. Burdine, 450 U.S. at 253. In order to do so, DART points to the affidavits of Burke and Warren Morgan. In his affidavit, Burke states that, as set out in DART's Salary Administration Manual, a demoted employee's salary may be reduced, but the decision to do so is left to the demoted employee's supervisor. Burke goes on to state that, as Vasquez's supervisor, he decided not to reduce Vasquez's salary. He acknowledges that when he made the decisions to 1) demote Vasquez and 2) not reduce Vasquez's salary, he was aware that Vasquez was one of the highest ranking Hispanics at DART and that political fallout could potentially result from his decisions regarding Vasquez. He asserts, however, that those political considerations did not factor into his decisions about Vasquez. In his deposition, Burke explained that he did not reduce Vasquez's salary because DART was trying to help and train him and because Vasquez wanted to be part of the team and was working diligently.
In his affidavit, Warren Morgan states that Vasquez's salary was not reduced when he was demoted because of DART's policy of not reducing a demoted employee's salary if the employee's previous salary fell within the salary range of the new position, as set out in DART's 1995 "Pay Philosophy" (included in its Personnel Policy Manual). However, this cited "Pay Philosophy" did not become effective until January 2, 1995, well after Vasquez's demotion, Thus, the only evidence upon which DART relies for a legitimate, non-retaliatory reason for the pay disparity between Johnson and Vasquez is Burke's explanation that, by company policy, the decision as to Vasquez's salary was his to make, and, in support of his decision, he cites DART's general desire to help Vasquez and the fact that Vasquez was working hard. If true, this evidence would permit the conclusion that the pay decision was non-discriminatory. Thus, the Court finds that, as a matter of law, DART has satisfied its burden to articulate a legitimate, nondiscriminatory reason for the pay disparity between Vasquez and Johnson.
However, the Court finds that disputed fact issues exist as to whether DART's proffered explanation for the pay disparity between Johnson and Vasquez was merely a pretext for discrimination and, as such, summary judgment on Johnson's pay disparity claim is DENIED.
2. Discriminatory Discharge
As noted above, Johnson must first make out a prima facie case of discriminatory discharge. To do so, Johnson must establish: (1) he is a member of a protected group; (2) he was qualified for the position held; (3) he was discharged front that position; and (4) he was replaced by someone outside of the protected group. See Byers, 209 F.3d at 426. The parties do not dispute that Johnson, like Reynolds, is Caucasian. He is, therefore, a member of a protected group. Byers, 209 F.3d at 426. Nor do the parties dispute that Johnson was discharged or that he was replaced by James Peña, a Hispanic, obviously not a member of his protected group. As to the third prong of the prima facie test, Johnson alleges that he was qualified for the Assistant Vice-President of Contracts position, which he held at the time of his termination, and DART does not refute this assertion. Johnson has therefore made a prima facie case of discrimination.
DART thus must articulate a legitimate, non-discriminatory reason for Johnson's discharge. Byers, 209 F.3d at 425. It has done so; specifically, DART states that Sam Turner, Johnson's supervisor at the relevant time, terminated Johnson for failure to (1) keep Turner advised of important issues; (2) exemplify a can-do attitude; (3) ensure adequate documentation; (4) identify trends; and (5) establish training sessions.
However, the Court finds that disputed fact issues exist as to whether DART's proffered explanation for Johnson's discharge is pretextual; thus, summary judgment on Johnson's pay disparity claim is DENIED.
VI. Conclusion
For the reasons stated above. Defendant's Motion for Summary Judgment is GRANTED IN PART and DENIED IN PART. Specifically. Defendant's Motion for Summary Judgment is DENIED as to (1) all of Plaintiffs' §§ 1983 and 1985 claims; (2) Johnson's pay disparity claim; and (3) Johnson's claim of discriminatory discharge. Defendant's Motion for Summary Judgment is GRANTED on (1) Plaintiffs' claims for the intentional infliction of emotional distress and (2) Reynolds' claim of race discrimination. Those claims are thus DISMISSED WITH PREJUDICE.
Because the record indicates that Defendants Roger Snoble, Ben Gomez, Victor Burke and Sam Turner, who were named in Plaintiffs' Amended Complaint more than eighteen months ago, were never served with process, those Defendants are DISMISSED WITHOUT PREJUDICE.
SO ORDERED.