Jackson v. Houston Indep Sch ( 1999 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
____________________
No. 98-20767
Summary Calendar
____________________
LEO JACKSON,
Plaintiff-Appellant,
v.
HOUSTON INDEPENDENT SCHOOL DISTRICT; PAUL PENA, JR,
Individually and in his Official Capacity as Assistant
Supervisor of Facilities, Grounds and Support Services,
Defendants-Appellees.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
(H-96-CV-4459)
_________________________________________________________________
June 29, 1999
Before KING, Chief Judge, POLITZ and BARKSDALE, Circuit Judges.
PER CURIAM:*
Plaintiff-appellant Leo Jackson appeals the district court’s
grant of summary judgment in favor of defendants-appellees
Houston Independent School District and Paul Peña, Jr. on his
Title VII and 42 U.S.C. § 1983 claims. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
At the time of the events giving rise to this lawsuit,
plaintiff-appellant Leo Jackson, an African-American man, was
employed by defendant-appellee Houston Independent School
District (“HISD” or “the District”) in its Facilities,
Maintenance, and Operations Department (“FMO”), where he worked
as a supervisor of FMO’s small-engine repair shop. In January
1995, Jackson wanted to apply for the position of Operations
Specialist for Support Services, but, he claims, that position
was “downgraded in classification for racial purposes” and
awarded without application or interview to Raul Cruz, a Hispanic
man.
Jackson did apply for the position of Operations Manager I,
and he was interviewed by a committee composed of defendant-
appellee Paul Peña, Jr., who was Jackson’s immediate supervisor,
Al Thompson, and Bob Lucas. Although Peña gave Jackson the
highest rating among all the applicants, Jackson did not receive
a job offer. Instead, the committee hired José Noriega, a
Hispanic male. After he learned of the committee’s decision,
Jackson filed an internal grievance contending that race had been
a factor in the committee’s failure to select him for the
position. Shortly thereafter, in February 1995, Jackson
requested that the Operations Foreman II position that he then
held be reviewed and reclassified. Peña informed Jackson that
such a review would take place once the District had hired a
consulting company to conduct it. Soon afterward, the District
engaged the Wyatt Company to carry out a reclassification study
2
of various District positions, and Jackson’s position was
reclassified as a result.
Jackson filed a charge of discrimination with the Equal
Employment Opportunity Commission (“EEOC”) contending that he was
denied certain promotions and refused a request for job
reclassification because of his race. In addition, Jackson
claimed that he suffered retaliation and deprivation of his
constitutional rights to liberty and equal protection. The EEOC
issued a right to sue notice on September 27, 1996, and on
December 26, 1996, Jackson filed an action in the Southern
District of Texas against the District and Peña (collectively,
“the defendants”) asserting claims for race discrimination and
retaliation under 42 U.S.C. §§ 2000e to 2000e-17 (“Title VII”)
and for the deprivation of his rights to liberty and equal
protection under 42 U.S.C. § 1983. The district court granted
summary judgment for the defendants on all of Jackson’s claims.
Jackson appeals.
II. STANDARD OF REVIEW
We review a district court’s grant of summary judgment de
novo, applying the same standards as the district court. See
United States v. Johnson, 160 F.3d 1061, 1063 (5th Cir. 1998).
After consulting applicable law in order to ascertain the
material factual issues, we consider the evidence bearing on
those issues, viewing the facts and the inferences to be drawn
therefrom in the light most favorable to the non-movant. See Doe
v. Dallas Indep. Sch. Dist., 153 F.3d 211, 214-15 (5th Cir.1998).
3
Summary judgment is properly granted if “the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law.” FED. R. CIV. P.
56(c).
III. DISCUSSION
On appeal, Jackson challenges the district court’s grant of
summary judgment on his Title VII and § 1983 claims. We address
each of his arguments in turn.
A. Title VII Race Discrimination Claim
Jackson alleges that the defendants1 discriminated against
him on the basis of his race by awarding the Operations
Specialist for Support Services position to Cruz without an
interview instead of allowing Jackson to apply; refusing to
promote him to Operations Manager I; and failing promptly to
review and reclassify the Operations Foreman II position. Under
the framework set forth by the Supreme Court in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973), a Title VII plaintiff must
first establish a prima facie case by a preponderance of the
evidence. See id. at 801-02. A plaintiff may prove a prima
1
The defendants assert that Jackson has not provided any
briefing regarding his Title VII claims against Peña and that he
has therefore waived them. Our reading of Jackson’s brief
reveals, however, that his arguments on his Title VII claims
appear to refer to both the District and Peña, and we will
therefore treat this appeal as challenging the district court’s
grant of summary judgment on Jackson’s Title VII claims against
both defendants.
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facie case of discrimination by showing (1) that he is a member
of a protected class, (2) that he sought and was qualified for an
available employment position, (3) that he was rejected for that
position, and (4) that the employer continued to seek applicants
with the plaintiff’s qualifications. See id. at 801. Once
established, the prima facie case raises an inference of unlawful
discrimination. See Texas Dep’t of Comm. Affairs v. Burdine, 450
U.S. 248, 254 (1981). The burden then shifts to the defendant
employer to articulate a legitimate, nondiscriminatory reason for
the challenged employment action. See McDonnell Douglas, 411
U.S. at 802. If the defendant comes forward with a reason which,
if believed, would support a finding that the challenged action
was nondiscriminatory, the inference of discrimination raised by
the plaintiff’s prima facie case drops from the case. See
Burdine, 450 U.S. at 255 n.10. The focus then shifts to the
ultimate question of whether the defendant intentionally
discriminated against the plaintiff. See St. Mary’s Honor Ctr.
v. Hicks, 509 U.S. 502, 510-11 (1993).
We now apply these principles to the case before us. The
parties appear to agree that Jackson made out a prima facie case
of racial discrimination. To meet their burden of offering a
legitimate, nondiscriminatory reason for their employment
decisions, the defendants offered the following explanations.
Cruz, they stated, was awarded the Operations Specialist for
Support Services position without an interview because that job
was filled administratively during a department reorganization
5
and reclassification conducted pursuant to official District
procedure. As for the Operations Manager I position, the
defendants explained that the selection committee collectively
decided that Noriega was the best qualified candidate for the
position. Finally, with respect to the delay in reviewing
Jackson’s Operations Foreman II position, the defendants averred
that it was necessary to hire a consulting firm before Jackson’s
job could be evaluated. These explanations, if believed, would
support a finding that the preference for Cruz and Noriega over
Jackson and the defendants’ failure promptly to review Jackson’s
position were legitimate and nondiscriminatory; the defendants
thus have satisfied their burden of production. The defendants
need not persuade us that they were actually motivated by these
reasons; it is sufficient that they have raised a genuine issue
of fact regarding whether they unlawfully discriminated against
Jackson. See Williams v. Time Warner Operation, Inc., 98 F.3d
179, 181 (5th Cir. 1996) (citing Burdine, 450 U.S. at 254).
We now turn to the question of whether the defendants
intentionally discriminated against Jackson on the basis of race.
Jackson may satisfy his summary judgment burden by coming forward
either with direct evidence of discriminatory intent or with
circumstantial evidence that the defendants’ rationale was
pretextual. See LaPierre v. Benson Nissan, Inc., 86 F.3d 444,
449 (5th Cir. 1996). We have articulated the test as follows:
[A] jury issue will be presented and a plaintiff can avoid
summary judgment . . . if the evidence taken as a whole
(1) creates a fact issue as to whether each of the
employer’s stated reasons was what actually motivated the
6
employer and (2) creates a reasonable inference that [race]
was a determinative factor in the actions of which plaintiff
complains. The employer, of course, will be entitled to
summary judgment if the evidence taken as a whole would not
allow a jury to infer that the actual reason for the
discharge was discriminatory.
Williams, 98 F.3d at 181 (first alteration in original) (quoting
Rhodes v. Guiberson Oil Tools, 75 F.3d 989, 995 (5th Cir. 1996)
(en banc), an age discrimination case, and applying Rhodes in the
race discrimination context).
Jackson points to portions of Peña’s deposition testimony
which he contends constitute either direct evidence of
discriminatory intent or circumstantial evidence that the
defendants’ rationale for denying him the promotion and delaying
him a job review was pretextual. Specifically, Peña admitted
that he had received orders to “achieve a balance in the
ethnicities”:
Q. [By Jackson’s counsel] Does your division try to achieve
a balance in the ethnicities?
A. That’s been our directive from our superiors.
Q. Could you repeat that, sir?
A. That has been a directive from my superiors.
Q. When was this directive from your superiors?
A. Through the years.
After Peña explained that Johnnie Tates, his immediate
supervisor, had given an oral “ethnic balancing” directive some
three to seven or eight times, most recently within the last six
months, Jackson’s counsel continued:
Q. What specifically did Mr. Tates say in this directive?
A. That we need to work toward balancing our work force
with ethnicity and gender.
Q. Did he give any more detail about what he meant by that?
A. “Look at your makeup.”
Q. When you say “look at your makeup,” are you referring to
the ethnic makeup?
7
A. (Witness nodding head.)
Q. After you’ve looked at your makeup, what are you
supposed to do in order to achieve this balance that Mr.
Tates has demanded?
A. Nothing, if you don’t have any vacancies.
Q. And if you do have a vacancy?
A. You advertise.
Q. Where do you advertise?
A. Through HR.
Q. How does advertising through -- HR, you mean Human
Resources, correct?
A. (Witness nodding head.)
Q. How does advertising help get the balance that your
supervisors want?
A. It doesn’t. You look for the best applicant for the
position.
Later in the deposition, Jackson’s counsel asked whether Tates’s
racial balancing directive was irreconcilable with the statement
on the District’s personnel advertisements that positions were to
be filled without regard to race or national origin. Peña
responded:
A. The position should be filled that (indicating); but you
also need to look at the makeup, as he was telling us. In
other words, don’t perpetuate it if somebody is already
there.
Q. What do you mean by that last comment, sir? I don’t
understand.
A. Perpetuate?
Q. Yes, sir.
A. If you’re out of balance, don’t keep making it more out
of balance.
Q. So that if you have too many African-Americans in a
particular division or department, you wouldn’t want to put
another African-American in?
A. I didn’t say that.
Q. How is that different from not perpetuating?
A. I don’t know how to do it. I was never told how to do
it, so I never practiced it.
Q. And you never asked how to do it?
A. No.
In an affidavit signed some two weeks after his deposition, Peña
averred: “Prior to the selection process for the Operations
Manager position in 1995, I was directed by my supervisor, Mr.
8
Johnnie Tates, to ensure ethnic balancing in the various
divisions throughout the department. I interpreted Mr. Tates
[sic] directive as requiring that I ensure that discrimination
was not a part of any employment decision in the department.”
The other two members of the selection committee stated in their
affidavits that they neither received any directive to consider
race or ethnicity nor did so during the application process for
the Operations Manager I position.
Jackson has failed to raise a fact issue as to whether the
defendants intentionally discriminated against him. The only
evidence that race was a factor in any of the employment
decisions concerning Jackson was Peña’s testimony that his
supervisor occasionally made somewhat ambiguous comments to the
effect that “we need to work towards balancing our work force
with ethnicity and gender.” It is far from clear that this
statement was intended or interpreted as an order to
discriminate; indeed, Peña testified that, to the extent that he
understood it at all, he took it to mean that he should not
discriminate in his hiring decisions. Moreover, there is no
evidence that the defendants discriminated on the basis of race
with respect to any of the incidents of which Jackson complains.
Peña testified, for example, that the District does nothing to
achieve such ethnic balancing if there are no vacancies and that,
if a vacancy arises, it advertises through the human resources
department and offers the position to the best applicant. The
other members of the Operations Manager I interview committee
9
stated unequivocally that race was not a factor in their
decision. Jackson has adduced no more than a scintilla of
evidence that the defendants’ employment decisions with respect
to him were racially motivated and, of course, such a mere
scintilla of evidence is insufficient to defeat a motion for
summary judgment. See Anderson v. Liberty Lobby, 477 U.S. 242,
252 (1986).
B. Title VII Retaliation Claim
Jackson also claims that the defendants unlawfully
retaliated against him after he filed an internal grievance with
the District. Specifically, he alleges that they denied him
promotions and refused his requests that his position be
reclassified, required him to perform an excessive number of
status reports, refused him funds for necessary equipment for his
department, and declined to assign him a new District vehicle to
use in performing his duties.
Title VII provides in relevant part that “[i]t shall be an
unlawful employment practice for an employer to discriminate
against any of his employees . . . because he has made a
charge . . . under this subchapter.” 42 U.S.C. § 2000e-3(a). A
retaliation claim has three elements: (1) the employee engaged
in activity protected by Title VII; (2) the employer took adverse
employment action against the employee; and (3) a causal
connection exists between that protected activity and the adverse
employment action. See Mattern v. Eastman Kodak Co., 104 F.3d
702, 705 (5th Cir. 1997).
10
The district court properly granted summary judgment for the
defendants on Jackson’s retaliation claims. Most of the
retaliation Jackson alleges that he suffered does not rise to the
level of an “adverse employment action.” Title VII was designed
to address only ultimate employment decisions and not “every
decision made by employers that arguably might have some
tangential effect upon those ultimate decisions.” Dollis v.
Rubin, 77 F.3d 777, 781-82 (5th Cir. 1995). “Ultimate employment
decisions” include acts “such as hiring, granting leave,
discharging, promoting, and compensating,” Mattern, 104 F.3d at
707, but not acts that are, at most, “‘tangential’ to future
decisions that might be ultimate employment decisions,” id. at
708. Such acts as an increased status report requirement and
refusal to provide tools or a new vehicle are not ultimate
employment decisions. Finally, although the alleged denials of
promotional opportunities and an immediate reclassification are
adverse employment actions, the record fails to show a causal
connection between the filing of his grievance and these actions,
and, in his brief to this court, Jackson ignores this element of
his retaliation claim altogether.
C. Section 1983 Claim Against the District
Jackson also claims that the District2 is liable to him
under 42 U.S.C. § 1983 because it deprived him of his rights to
liberty and equal protection by categorizing him based on his
2
We will discuss Jackson’s § 1983 claims against the
District and Peña separately because we dispose of them on
different grounds.
11
race. It is well-settled that a local governmental body such as
the District is liable for damages under § 1983 for
constitutional violations resulting from official policy or
custom. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690-91
(1978). A local government is responsible under § 1983 “when
execution of [the] government’s policy or custom, whether made by
its lawmakers or by those whose edicts or acts may fairly be said
to represent official policy, inflicts the injury . . . .” Id.
at 694. A local government may not, however, be held liable
under § 1983 for the unconstitutional acts of its non-
policymaking employees; municipal liability cannot rest on a
theory of respondeat superior. See id. at 691. This circuit has
defined an official policy for whose execution a local government
may be found liable as:
. A policy statement, ordinance, regulation, or decision
that is officially adopted and promulgated by the
[district] . . . or by an official to whom the
[district] ha[s] delegated policy-making authority; or
. A persistent, widespread practice of [district]
officials or employees, which, although not authorized
by officially adopted and promulgated policy, is so
common and well settled as to constitute a custom that
fairly represents [district] policy. Actual or
constructive knowledge of such custom must be
attributable to the governing body of the municipality
or to an official to whom that body had delegated
policy-making authority.
Eugene v. Alief Indep. Sch. Dist., 65 F.3d 1299, 1304 (5th Cir.
1995) (alterations in original) (quoting Johnson v. Moore, 958
F.2d 92, 94 (5th Cir. 1992)). Whether a particular entity has
final policymaking authority is a question of state law, and the
identification of those officials whose decisions represent the
12
official policy of the local governmental unit is a legal
question to be resolved by the trial judge before the case is
submitted to the jury. See Jett v. Dallas Indep. Sch. Dist., 491
U.S. 701, 737 (1989).
With these principles in mind, we turn to Jackson’s claims
against the District. Under Texas law, the board of trustees is
responsible for determining school policy. See Gonzalez v.
Ysleta Indep. Sch. Dist., 996 F.2d 745, 752 (5th Cir. 1993).
Jackson has adduced no evidence whatsoever that his alleged
injuries stemmed from an official policy promulgated by the board
of trustees or from a persistent, widespread practice of District
officials and employees of which the board had actual or
constructive notice. Rather, he claims that Dr. Paige, the
District’s superintendent, gave Tates, who in turn passed the
instruction to Peña, a directive regarding ethnic balancing, and
that Paige’s involvement subjects the District to liability.
Jackson has produced no evidence, however, that the District’s
board of trustees delegated final policymaking authority to
Paige. We therefore conclude that the District cannot be liable
to Jackson under § 1983.
D. Section 1983 Claim Against Peña
Finally, Jackson claims that Peña is liable to him under 42
U.S.C. § 1983 because Peña violated his rights to liberty and
equal protection. Peña contends, however, that he is entitled to
qualified immunity. Public officials acting within the scope of
their official duties are shielded from civil liability by the
13
doctrine of qualified immunity. See Eugene, 65 F.3d at 1305
(citing Harlow v. Fitzgerald, 457 U.S. 800, 815-19 (1982)).
Qualified immunity does not, however, shield a public official
whose conduct violates clearly established constitutional rights,
if a reasonable person would have known that such conduct was
unconstitutional. See id. The examination of a claim of
qualified immunity is a two-step inquiry. First, a court must
determine whether the plaintiff has alleged a violation of a
clearly established right. See Fontenot v. Cormier, 56 F.3d 669,
673 (5th Cir. 1995). Second, the court must decide whether the
defendant’s conduct was “objectively reasonable in light of the
legal rules applicable at the time of the alleged violation.”
Id.
While Jackson has a clearly established right to be free
from racial discrimination in employment, the evidence simply
does not support the conclusion that Peña acted in an objectively
unreasonable manner. The record does not demonstrate what
connection, if any, Peña had to the decision to award Cruz the
Operations Specialist for Support Services position. It does
show that Peña rated Jackson highest among the finalists for the
Operations Manager I position, that the interview panel
collectively chose to recommend Noriega, and that Peña did not
immediately review and reclassify Jackson’s position because he
wished to employ a consulting company to review all positions.
As we explained above in Section III.A, Peña’s deposition
testimony--Jackson’s only evidence that race was a factor in any
14
of the employment decisions of which he complains--does not so
much as raise a fact issue as to whether Jackson was
discriminated against on the basis of race. Thus, Peña
reasonably could have thought his actions to be consistent with
the rights he allegedly violated, and he is therefore entitled to
claim the defense of qualified immunity.
IV. CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of the
district court.
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