Summary
distinguishing Price and holding intake questionnaire not a charge of discrimination where plaintiff adduced no evidence that EEOC considered questionnaire to be charge or used it to initiate administrative process
Summary of this case from Tillison v. Trinity Valley Electric Cooperative, Inc.Opinion
No. 3:02-CV-1065-P
December 17, 2003
MEMORANDUM OPINION AND ORDER
Now before the Court is Defendants' Motion for Summary Judgment, filed September 8, 2003. After a thorough review of the parties' briefs and the applicable law, the Court DENIES Defendants' Motion for Summary Judgment.
Plaintiff filed her Response to Defendants' Motion for Summary Judgment on November 6, 2003 and Defendants filed their Reply on December 1, 2003. On December 5, 2003, the Court granted Plaintiffs Motion for Leave to File Sur-Reply and Plaintiff filed her Sur-Reply on December 12, 2003.
BACKGROUND
Plaintiff, a white female, brought this action against Defendants for the following Title VII claims: race and gender discrimination and retaliation. (Pl's Resp. at 1.)
Plaintiffs and Defendants' versions of the facts vary significantly. However, when a party moves for summary judgment, the Court presumes that the non-movant's version of any disputed issues of fact is correct. See Eastman Kodak Co. v. Image Technical Services, Inc., 504 U.S. 451, 456 (1992). Thus, for purposes of this Motion, the Court must accept as true Plaintiffs version of the disputed facts.
In October 1977, Defendant City of Dallas ("City) hired Plaintiff as the first female firefighter in the Dallas Fire Department ("DFD"). (Pl's App. at 1.) Plaintiff was employed as a Fire Rescue Officer until March 18, 1991, when she received a promotion to Driver Engineer. (Pl's App. at 1.) In 1996, the Chief of the DFD promoted Plaintiff to Public Information Officer ("PIO") for the DFD and later to PIO for the City. (Pl's App. at 1.) In July 1998, the Chief once again promoted Plaintiff, this time to the rank of Acting Captain with the title of Recruiter in the DFD's Personnel Division. (Pl's App. at 1-2.) In this position, Plaintiff's supervisor was Curtis Pierre, a black male. (Pl's App. at 2.)
In August 1998, Plaintiff began to complain to Pierre and other employees in the Personnel Division about what she believed to be unlawful discrimination in their hiring practice. (Pl's App. at 3.) Plaintiff claims that as a result of her complaints, Pierre would intimidate her in some of the following ways: threatening her with a knife on three separate occasions, writing her up in a Letter of Counseling, not authorizing pay Plaintiff was supposed to receive, yelling and pointing his finger at her, and not authorizing her vacation time. (Pl's App. at 4-7.) Plaintiff notified ranking members of the DFD and filed internal complaints regarding Pierre's behavior. (Pl's App. at 7.)
Months later, Plaintiff received the pay owed to her and the Counseling Letter was removed from her file. (Pl's App. at 7.)
During the week of November 23, 1998, Plaintiff told Chief Robert Bailey, Assistant Chief of Administration for the DFD, that Pierre continued to intimidate her and retaliate against her and that the managerial personnel of the DFD had failed to anything to relieve Pierre's intimidation and retaliation. (Pl's App. at 7.) At this meeting, Plaintiff informed Chief Bailey that she wanted to perform the Recruiter position and did not want to be removed from her rank or job classification. (Pl's App. at 7.)
On November 30, 1998, her office was moved to the Training Division, but Chief Bailey told her that she would remain the Recruiter and the move was only temporary. (Pl's App. at 7.) On December 7, 1998, the Deputy Chief in Training told Plaintiff that she would no longer be a Recruiter, but told her to keep her Department vehicle. (Pl's App. at 8.) The next day, Captain Louie Bright told her to clean out the Recruiting Office and return her car and pager. (Pl's App. at 8.) According to Plaintiff, she did not find out that she would be demoted in rank or pay until mid-December. (Pl's App. at 8.) The DFD replaced Plaintiff with Lieutenant George Florence, a black male also working in an "Acting Capacity." (Pl's App. at 8.)
After Plaintiff began her Trainer duties, she claims that the harassment and retaliation by Pierre continued. (Pl's App. at 8.) Plaintiff claims he stalked her by driving near the training area and glaring at her. (Pl's App. at 9.) Also, on April 23, 1999, Plaintiff claims that Pierre was responsible for having her removed from a sexual harassment training course offered to her trainees. (Pl's App. at 9.)
In April of 1999, Plaintiff's physical and emotional health began to decline due to Pierre's discriminatory and retaliatory conduct. (Pl's App. at 10.) She sought medical attention and her medical care providers told her that a medical leave was a necessity. (Pl's App. at 10.) Her medical leave began on August 17, 1999 and ended on January 9, 2000. (Pl's App. at 10.) Plaintiff filed her charge of discrimination with the EEOC on October 4, 1999 (Defs.' App. at 68), and Plaintiff claims that she was demoted from the rank of Acting Lieutenant in Training to the lower rank of Driver Engineer on October 11, 1999. (Pl's App. at 10.)
DISCUSSION
I. Summary Judgment Standard.
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). 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. Id. at 323. However, 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).
Once the 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 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, 477 U.S. 242, 248 (1986). Mere assertions of a factual dispute unsupported by probative evidence will not prevent a 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 his case, and on which he bears the burden of proof at trial, summary judgment is mandatory. Celotex, 477 U.S. at 322-24; Washington v. Armstrong World Industries, Inc., 839 F.2d 1121, 1122 (5th Cir. 1988). A motion for summary judgment cannot be granted simply because there is no opposition, even if the failure to oppose it violates a local rule. Hibernia Nat'l Bank v. Adminstracion Central Sociedad Anonima, 776 F.3d 1277, 1279 (5th Cir. 1985). However, when the nonmovant fails to provide a response identifying the disputed issues of fact, the Court is entitled to accept the movant's description of the undisputed facts as prima facie evidence of its entitlement to judgment. Eversly v. Mbank Dallas, 843 F.2d 172, 173-174 (5th Cir. 1999); Nordar Holdings, Inc. v. Western Sec. (USA) Ltd., No. 3:96-CV-0427-H, 1996 WL 739019, *2 (N.D. Tex. Dec. 18, 1996).
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 summary judgment is required to identify specific evidence in the record and to articulate the precise matter in which the evidence supports his or her claim." Id. A party may not rely upon "unsubstantiated assertions" as competent summary judgment evidence. Id. II. Timeliness of Plaintiffs EEOC Charge.
Defendants allege that Plaintiff's claims are "time-barred" because she failed to file her EEOC charge within 300 days after the alleged unlawful practice occurred. (Defs.' Mot. Summ. J. at 15.) Pursuant to 42 U.S.C. § 2000e-5(e)(1), claimants in Texas must file a charge of discrimination with the EEOC within three hundred days after the alleged unlawful employment practice occurred. Huckabay v. Moore, 142 F.3d 233, 238 (5th Cir. 1998). "Timely filing is a prerequisite to the maintenance of a Title VII action and the failure to file within the statutory period will ordinarily operate as a bar to suit." Abrams v. Baylor College of Medicine, 805 F.2d 528, 532 (5th Cir. 1986).
Plaintiff first relies on Price v. Southwestern Bell Tel. Co., 687 F.2d 74 (5th Cir. 1982), wherein the Fifth Circuit held that a plaintiff's filing of an intake questionnaire with the EEOC constitutes the filing of a charge under Title VII. (Pl's Resp. at 15.) In Price, the Fifth Circuit held that in determining whether filing an intake questionnaire could be viewed as filing a charge, it is relevant whether the EEOC deemed the intake questionnaire a charge and whether the intake questionnaire was used to initiate the administrative process. Id. at 78-79. Here, Plaintiff does not present any evidence indicating that the EEOC considered her intake questionnaire to be a charge or that it was used to initiate the administrative process. As a result, the Court finds that Plaintiff's intake questionnaire does not constitute a charge.
Thus, the Court must determine whether Plaintiff's filing of her EEOC charge on October 4, 1999 was timely. (Defs.' App. at 68.) The Fifth Circuit explained in Ramirez v. City of San Antonio that "the limitations period does not begin when the employer commits an act that this Court would characterize as an adverse employment decision. Instead, an employee's claim accrues at the moment the employee believes (or has reason to believe) that he is the victim of discrimination." 312 F.3d 178, 182 (5th Cir. 2002).
On November 30, 1998, Plaintiff was told that while her office was being moved, the move would be temporary, she would keep her position as Recruiter, and everything else would remain the same. (Pl.'s App. at 7.) Plaintiff believed that Chief Bailey moved her office to get her out of the direct proximity of Pierre. (Pl.'s App. at 8.) On December 7, 1998, Anderson informed her that she would no longer be a Recruiter, but that she could keep her company car. (Pl.'s Resp. at 8.) At this point, Plaintiff argues that she was not aware that she would be demoted in rank and receive a reduced salary. (Pl.'s Resp. at 8.) She simply thought that her job responsibilities would change. (Pl.'s App. at 8.) Plaintiff claims that even the next day when Captain Bright told her to return her car and pager she still did not know that she was being demoted in rank and pay. (Pl.'s App. at 8.) According to Plaintiff, she learned of her demotion in mid-December and her demotion did not formally occur until January 29, 1999. (Pl.'s App. at 8.)
While Defendants claim that Plaintiff was allegedly demoted on November 30, 1998, Plaintiff argues that the earliest she could have learned that her salary and rank would be reduced was on December 8, 1998. (Pl.'s Resp. at 16.) The Court agrees with Plaintiff. The actionable conduct at issue here is her decrease in pay. See Ackel v. Nat'l Communs., Inc., 339 F.3d 376, 385 (5th Cir. 2003). A change in job responsibilities or title alone does not qualify as an adverse employment action, and thus would not put her on notice that she might be the victim of discrimination. See id. Pursuant to Federal Rule of Civil Procedure 6(a), the Court does not include the day of the event, here December 8, 1998, when computing time periods. Accordingly, the Court adds 300 days to December 9, 1998, which was October 5, 1999. Thus, Plaintiff timely filed her EEOC charge.
III. McDonnell Douglas-Burdine Framework.
Title VII makes it an unlawful employment practice for an employer to adversely affect the status of an employee because of the individual's race or sex. 42 U.S.C. § 2000e-2(a)(1). "Title VII also prohibits retaliation against employees who engage in protected conduct," such as filing a charge of discrimination. Fabela v. Socorro Indep. Sch. Dist., 329 F.3d 409, 414 (5th Cir. 2003) (citing U.S.C. § 2000e-3(a)(2000)). Since Plaintiff uses circumstantial evidence to demonstrate that "discriminatory animus played a role in an employment decision, [Plaintiff] may rely on the McDonnell Douglas-Burdine, burden-shifting framework to create a presumption of intentional discrimination." Wallace v. Methodist Hosp. Sys., 271 F.3d 212, 219 (5th Cir. 2001). The McDonnell Douglas-Burdine burden shifting framework applies to disparate treatment claims as well as unlawful retaliation claims. Long v. Eastfield College, 88 F.3d 300, 304 (5th Cir. 1996).
Plaintiff claims that since "Chief Bailey's admission" is direct evidence, she does not need to adhere to the circumstantial framework set forth in McDonnell Douglas. (Pl's Sur-Reply at 6.) However, Plaintiffs Response makes no mention of this and in fact relies on the McDonnell Douglas framework. (Pl.'s Resp. at 28-32.) Therefore, the Court will not allow Plaintiff to first assert this in her Sur-Reply.
"Under the McDonnell Douglas-Burdine framework, the parties dance an adversarial three-step, in which: (1) the plaintiff proves his prima facie case by a preponderance of the evidence; (2) the defendant rebuts the presumption of intentional discrimination arising from the prima facie case by articulating legitimate, non-discriminatory reasons for the challenged action; and (3) the plaintiff counters by offering evidence that the legitimate, non-discriminatory reasons are really a pretext for discrimination." Casarez v. Burlington Northern/Santa Fe Co., 193 F.3d 334, 337 (5th Cir. 1999).
IV. Plaintiff's Race and Gender Discrimination Claims.
A. Prima Facie Case.
To establish a prima facie case of race or gender discrimination under Title VII, Plaintiff must prove the following: (1) she is a member of a protected class; (2) she was qualified for the position that she held; (3) she suffered an adverse employment action; and (4) her employer replaced her with a person who is not a member of the protected class. Eminence v. H R Block Income Tax Sch., 66 F.3d 77, 83 (5th Cir. 1995). While Defendants do not dispute that Plaintiff is a member of a protected class or that she was replaced by a person who is not a member of her protected class, they do dispute that she was qualified for the position and that she suffered an adverse employment action. (Defs.' Reply at 8.)
1. Was Plaintiff qualified for the position she held?
To demonstrate that Plaintiff was not qualified for her position, Defendants rely heavily on the fact that Plaintiff was not promoted according to the Civil Service Rules and that she was not qualified to hold her position as Acting Captain on a permanent basis. (Defs.' Mot. Summ. J. at 23.) Defendants also point out that her positions of Acting Captain in Personnel and Acting Lieutenant in Training were temporary. (Defs.' Mot. Summ. J. at 25.) Furthermore, Defendants argue that Plaintiff's promotion was incomplete, because she did not complete the six-month probationary period as required by the Civil Service Rules. (Defs.' Mot. Summ. J. at 27.)
To be promoted to the rank of Fire Captain, Plaintiff would have had to serve as Fire Lieutenant for one year, to serve in the DFD for 5 years, and take a promotional examination. (Defs.' Mot. Summ. J. at 24-25.) According to Defendants, Plaintiff had not served as Fire Lieutenant for one year nor had she taken a promotional examination. (Defs.' Mot. Summ. J. at 24-25.)
Defendants quote the following from Civil Service Rule 4(B)(6): "Temporary performance of the duties of any such higher position by a person who has not been promoted in accordance with these rules shall never be construed to promote such person . . ." (Defs.' Mot. Summ. J. at 25.)
However, Defendants' arguments are misplaced. The Fifth Circuit has held that "the concept of a probationary employee . . . has little relevance in a Title VII case. The complex statutory scheme prohibiting employment decisions based on an individual's race, color, religion, sex or national origin cannot be avoided by classifying employees as 'probationary.'" Smith v. Texas Dep't of Water Resources, 799 F.2d 1026, 1031 (5th Cir. 1986). The Fifth Circuit further explained that "even if an employee's probationary status would make it easier to discharge her under department policies, it would not justify a discharge motivated by a discriminatory animus." Smith v. Texas Dep't of Water Resources, 818 F.2d 363, 366 (5th Cir. 1987).
Smith was considered a probationary employee, because she had been working for less than six months. Smith, 799 F.2d at 1029.
The Court finds that the same reasoning applies here. The fact that Plaintiff was employed in an Acting Capacity rather than a permanent capacity would not excuse Defendants from acting with racial animus in removing her from her position. Thus, the Court cannot find based on this argument alone that Plaintiff was unqualified for her position. 2. Did Plaintiff suffer an adverse employment action?
According to Plaintiff, she is entitled to redress under Title VII due to her two demotions and involuntary leave. (Pl's Resp. at 32.) However, Defendants failed to address Plaintiff's involuntary medical leave in their Motion for Summary Judgment, because they argued, without citing any authority, that "this is not a valid claim under Title VII." (Defs.' Reply at 10.) However, the Court will not grant summary judgment based on this bald assertion alone. Thus, Plaintiff may proceed with her claim for involuntary medical leave.
According to Plaintiff, her salary decreased after she lost her position as Acting Captain. (Pl.'s App. at 8.) "Adverse employment actions include only ultimate employment decisions such as hiring, granting leave, discharging, promoting, or compensating." Ackel, 339 F.3d at 385.
Defendants argue that because Plaintiff's pay increases were not permanent, they are not adverse employment actions. However, Defendants fail to cite to any authority indicating that compensation decreases must be permanent to be considered adverse employment actions. Furthermore, the Fifth Circuit has held that discontinuing a stipend is a compensation decision, which qualifies as adverse employment action. Mota v. Univ. of Tex. Houston Health Sci. Ctr., 261 F.3d 512, 521 (5th Cir. 2001).
Since Plaintiff received a decrease in her salary, the Court finds that she endured an adverse employment action. Thus, the Court finds that Plaintiff established a prima facie case of race and gender discrimination.
B. Rebuttable Presumption.
Establishment of the prima facie case in effect creates a presumption that the employer unlawfully discriminated against the employee. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 254 (1981). Defendants must rebut this presumption of intentional discrimination arising from the prima facie case by articulating legitimate, non-discriminatory reasons for the challenged action. Casarez, 193 F.3d at 337. "To accomplish this, the defendant must clearly set forth, through the introduction of admissible evidence, the reasons for the plaintiff's rejection." Burdine, 450 U.S. at 255.
Defendants allege that Plaintiff was removed from her position not as a result of discrimination, but as "a result of her own actions." (Defs.' Reply at 10.) According to Chief Bailey, Plaintiff contacted him during the week of the Thanksgiving holiday and informed him of her fear of continuing to work with Pierre. (Defs.' App. at 256.) Lieutenant Florence, an employee in Training, also expressed a desire to transfer due to a conflict with his commanding officer. (Defs.' App. at 256.) Thus, Chief Bailey decided to swap these two employees, placing Lieutenant Florence in the temporary Recruiter's position in personnel and placing Plaintiff in Training. (Defs.' App. at 256.) According to Chief Bailey, he had to move Lieutenant Florence into Plaintiff's position to create a position for her. (Defs.' App. at 256.)
Regarding the second transfer, Chief Bailey explains that Deputy Chief Anderson requested that another person be assigned to Plaintiff's position in Training, because Plaintiff took an extended period of time off of work without indicating when she would return and they needed someone to take over Plaintiff's responsibilities concerning the upcoming classes. (Defs.' App. at 258.) Thus, Defendants articulated legitimate, non-discriminatory reasons for the allegedly discriminatory conduct.
C. Pretext.
Since Defendants articulated a legitimate, non-discriminatory reason for transferring Plaintiff, the burden is on Plaintiff to demonstrate that this articulated reason was merely a pretext for discrimination. Pratt v. City of Houston, 247 F.3d 601, 606 (5th Cir. 2001). To establish pretext, Plaintiff must present evidence to rebut each of the non-discriminatory reasons that Defendant articulates. Wallace v. Methodist Hasp. Sys., 271 F.3d 212, 220 (5th Cir. 2001.) "Plaintiff may establish pretext by showing that a discriminatory motive more likely motivated [Defendants'] decision, such as through evidence of disparate treatment, or that [Defendants'] explanation is unworthy of credence." Id. (quoting Deffenbaugh-Williams v. Wal-Mart Stores, Inc., 156 F.3d 581, 589 (5th Cir. 1998), vacated by 165 F.3d 215 (1999), reinstated in pertinent part by 182 F.3d 333 (1999) (quotations omitted).
"An explanation is false or unworthy of credence if it is not the real reason for the adverse employment action." Laxton v. Gap Inc., 333 F.3d 572, 578 (5th Cir. 2003). To show that Defendants' justification is unworthy of credence, Plaintiff "need only bring evidence that enables the jury to disbelieve that the employer's proffered justification truly motivated the adverse employment action." Id. at 580, n 2. "Evidence demonstrating that [Defendants'] explanation is false or unworthy of credence, taken together with [P]laintiff's prima facie case, is likely to support an inference of discrimination even without further evidence of [Defendants'] true motive." Id. at 578. "The rare instances in which a showing of pretext is insufficient to establish discrimination are (1) when the record conclusively reveals some other, nondiscriminatory reason for [Defendants'] decision, or (2) when [P]laintiff creates only a weak issue of fact as to whether [Defendants'] reason was untrue, and there was abundant and uncontroverted evidence that no discrimination occurred." Id. (citing Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148 (2000).
Here, Plaintiff argues that Defendants' explanation is unworthy of credence. (Pl's Sur-Reply at 5-7.) Plaintiff states that Chief Bailey's justification of swapping Plaintiff's and Lieutenant Florence's positions due to their desire to discontinue working with their immediate supervisors "does not answer why [Plaintiff's] rank was removed, her pay cut and her duties reassigned." (Pl's Sur-Reply at 5.) Plaintiff also points to Chief Bailey's affidavit, wherein he indicates that the reason he transferred Plaintiff to the Training Division was because she had expressed to me her fear of continuing to work under Pierre (Def.'s App. at 256), who was "the primary instrument of discrimination and retaliation." (Pl's Sur-Reply at 8.)
Regarding Plaintiff's "second demotion," Plaintiff again argues that Chief Bailey's justification of placing a male into Plaintiff's position of Training Officer does not explain "why [Plaintiff's] rank was pulled, her salary cut and her job duties changed, or why, for that matter, she was not reinstated to the position, rank or pay when she was able to resume employment." (Pl.'s Sur-Reply at 6.)
Thus, Plaintiff offered evidence that could enable a jury to disbelieve that Defendants' legitimate, non-discriminatory reasons truly motivated Plaintiff's "demotions." Accordingly, the Court DENIES Defendants' Motion for Summary Judgment regarding race and gender discrimination.
V. Plaintiff's Retaliation Claim.
"Title VII prohibits an employer from retaliating against an employee because that employee has complained about acts of discrimination at work." Manning v. Chevron Chem. Co. LLC, 332 F.3d 874, 882 (5th Cir. 2003).
A. Prima Facie Case.
To establish a prima facie case of retaliation under Title VII, Plaintiff must demonstrate that she: (1) engaged in a protected activity; (2) that an adverse employment action occurred; and (3) that a causal link exists between the protected activity and the adverse employment action. Fabela, 329 F.3d at 414.
1. Protected Activity.
"Protected activity is defined as opposition to any practice rendered unlawful by Title VII, including making a charge, testifying, assisting, or participating in any investigation, proceeding, or hearing under Title VII." Ackel, 339 F.3d at 385 (quoting Green v. Adm'rs of the Tulane Educ. Fund, 284 F.3d 642, 657 (5th Cir. 2002)). "Title VII does not require that a plaintiff prove that the conduct opposed was actually in violation of Title VII, but only that a charge was made, or that participation in an investigation of a violation of Title VII occurred." Green, 284 F.3d at 657.
According to Plaintiff, she complained to ranking members of the Department, including Chief Bailey, about Pierre's conduct, and she filed internal complaints. (Pl's App. at 007.) Plaintiff filed her first written complaint on September 7, 1998. (Defs.' App. at 232.) The Fifth Circuit has held that "the plaintiff's use of her employer's internal administrative process to file an employment discrimination complaint 'is clearly protected activity' for purposes of a Title VII retaliation claim." Fierros v. Tex. Dep't of Health, 274 F.3d 187, 194 (5th Cir. 2001) (quoting Dollis v. Rubin, 77 F.3d 777, 781 (5th Cir. 1995). Therefore, Plaintiff engaged in protected activity.
2. Adverse Employment Action and Causal Link.
The Court has already determined that Plaintiff suffered an adverse employment action. See supra. Thus, the Court must decide whether a causal link exists between the protected activity and the adverse employment action.
At the prima facie stage, the standard for establishing a "causal link" is less stringent than the "but-for" causation standard. Long, 88 F.3d at 305 n. 4. "[P]laintiff need not prove that her protected activity was the sole factor motivating the employer's challenged decision in order to establish the 'causal link' element of a prima facie case." Id. Rather, "a 'causal link' is established when the evidence demonstrates that 'the employer's decision to terminate was based in part on knowledge of the employee's protected activity.'" Medina v. Ramsey Steel Co., 238 F.3d 674, 684 (5th Cir. 2001) (quoting Sherrod v. American Airlines, 132 F.3d 1112, 1122 (5th Cir. 1998)).
The Court begins with what Plaintiff terms as her "first demotion." (Pl.'s Resp. at 26.) Here, Chief Bailey testifies in his affidavit that he transferred Plaintiff due to her expressed fear of continuing to work with Pierre. (Defs.' App. at 256.) Chief Bailey was aware of Plaintiff s allegations regarding Pierre's discriminatory and retaliatory conduct as early as September 7, 1998, when she filed her first written complaint about violence in the workplace and she sent a memo to him. (Defs.' App. at 232.) Thus, Plaintiff presented evidence showing that Chief Bailey's reason for transferring her were based in part on his knowledge of her filing internal complaints.
Turning to her "second demotion," Plaintiff argues that it "was the natural consequence of her involuntary medical leave, which, in turn, was caused by Pierre's discriminatory and retaliatory actions and Chief Bailey's initial demotion." (Pl's Resp. at 25.) Once again, Plaintiff presented evidence indicating a causal link between Chief Bailey's decision to demote her in rank and pay during her leave and her protected activity.
Therefore, Plaintiff established a prima facie case of retaliation with respect to both demotions.
B. Legitimate, Non-Retaliatory Reason.
"A McDonnell Douglas prima facie showing establishes an inference of retaliatory motive that the employer can rebut by producing evidence of a legitimate, non-retaliatory reason for the adverse action." Fierros, 274 F.3d at 191. Defendants already set forth evidence of a legitimate, non-retaliatory reason for the adverse employment action above. See supra.
C. But For Causation.
Since Defendants set forth legitimate, non-retaliatory reasons, the burden shifts to Plaintiff to prove that the Title VII protected activity "was a 'but for' cause of the adverse employment decision." Fierros, 274 F.3d at 191. If Plaintiff presents evidence of a prima facie case, "plus evidence that the reasons given by the employer for the adverse employment action were pretextual, a jury may infer the existence of this but for causation." Id. at 191-192 (quoting Mota, 261 F.3d at 519-520) (internal quotations omitted).
After a lengthy discussion as to why the burden does not shift to Plaintiff to show that Defendants' reasons are pretextual or otherwise unworthy of belief, Plaintiff points to the fact that Chief Bailey testified in his affidavit that he demoted Plaintiff the first time due to her expressed fear of continuing to work with Pierre. (Defs.' App. at 256.) Furthermore, Chief Bailey demoted Plaintiff the second time while she was on medical leave that she claims resulted from Pierre's discrimination and retaliation against her. (Defs.' App. at 257-258.) Chief Bailey was aware of Plaintiff's allegations regarding Pierre's discriminatory and retaliatory conduct as early as September 7, 1998, when she filed her first written complaint about violence in the workplace and she sent a memo to him. (Defs.' App. at 232.) Thus, Plaintiff presents evidence indicating that her "demotions" could be pretext for retaliation.
The Court is not persuaded by Plaintiff's argument that she is not required to show pretext due to the fact that Defendants inadvertently failed to cite to the Appendix when setting forth legitimate, non-discriminatory reasons. (Pl.'s Sur-Reply at 1-4.) First, Defendants corrected this mistake in their Reply. (Defs.' Reply at 11-12.) Furthermore, Defendants had set forth the same legitimate, non-discriminatory reasons, complete with citations to the Appendix, in previous pages of their Motion for Summary Judgment. (Defs.' Mot. Summ. J. at 16-18.) Thus, while their mistake may have caused Plaintiff difficulty or confusion, Defendants did not raise new grounds to obtain summary judgment with respect to their legitimate, non-discriminatory reasons. Finally, any potential injustice that this mistake could have caused Plaintiff was eliminated by the Court granting her leave to file a Sur-Reply, which gave her ample opportunity to respond to Defendants' legitimate, non-discriminatory reasons.
For the reasons set forth above, the Court DENIES Defendants' Motion for Summary Judgment.