Grey v. Dallas Independent School District , 265 F. App'x 342 ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 14, 2008
No. 06-10779 Charles R. Fulbruge III
Summary Calendar Clerk
TIMOTHY GREY
Plaintiff - Appellant
v.
DALLAS INDEPENDENT SCHOOL DISTRICT; MANUAL VASQUEZ;
CEDRIC PORTLEY; DAN CLAXTON; GARY HODGES; LUIZ TAMEZ
Defendants - Appellees
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:04-CV-1164
Before KING, DAVIS and CLEMENT, Circuit Judges.
PER CURIAM:*
Timothy Grey was terminated from his employment as a security officer
for the Dallas Independent School District (“DISD”). He sued the DISD and
DISD supervisors Manual Vasquez, Cedric Portley, Dan Claxton, Gary Hodges
and Luiz Tamez (“the Defendants”) under Title VII and 42 U.S.C. § 1983. The
*
Pursuant to 5TH CIR. R. 47.5, this Court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
No. 06-10779
district court granted summary judgment in favor of the Defendants and we
affirm.
I. FACTS AND PROCEEDINGS
Grey was hired by DISD as a School Resource Police Officer in 2001. At all
relevant times, Vasquez was Chief of DISD Department of Police and Security
Services and Portley, Claxton and Hodges were Grey’s supervisors. Tamez was
DISD’s Coordinator of Employee Hearings and Grievances. In January 2002,
Portley discovered that Grey’s driver’s license had been suspended and assigned
him to the dispatch office until the license situation was resolved. While this
order was in place, Grey rode on patrol with other officers for several shifts.
When Portley and Claxton confronted Grey about disobeying their direct order,
Grey responded by stating “you want to talk, we can talk to my attorney.”1
On February 14, 2002, Portley and Claxton met with Grey to notify him
that he was under investigation for insubordination for this and other incidents.
On February 15, 2002, Grey filed a grievance against Vasquez, Portley and
Claxton in which he claimed retaliation, hostile work environment and “despair
treatment” for his “free speech” in requesting an attorney. In his first grievance,
Grey stated that “Chief Vasquez has a history of practicing retaliatory conduct
towards officers who opposed him or speak up for themselves. Vasquez also have
[sic] been proven guilty for retaliation by the EEOC.” Apart from the reference
to the Equal Employment Opportunity Commission (“EEOC”), nothing in Grey’s
four page handwritten grievance related to Title VII-type discrimination. Tamez,
the DISD administrator with whom the first grievance was filed, did not take
any action to investigate the grievance or schedule a hearing. Grey contacted
Tamez on March 19, 2002 to find out the status of his first grievance and Tamez
told him to take it up with his immediate supervisor, which was in violation of
1
Grey states that he obtained permission from Vasquez to ride with other officers
instead of staying in the dispatch office.
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No. 06-10779
a DISD policy requiring any administrator who received a grievance in error to
forward it to the proper administrator and notify the grievant. In August 2002,
after Grey had been terminated, Tamez discovered that the first grievance had
not been resolved and he scheduled a hearing for Grey before Vasquez. Vasquez
denied Grey’s grievance on August 29, 2002.
On March 7, 2002, Portley, Claxton and Hodges recommended to Vasquez
that Grey be terminated based on his insubordination prior to and during the
course of their February 2002 investigation. On April 30, 2002, Vasquez notified
Grey in writing that he was recommending termination for reasons which
included excessive absences and “[a]cts of insubordination and unprofessional
remarks directed towards supervisors.” Grey requested and received a hearing
before a three-person judicial panel. The hearing took place on August 6-7, 2002.
Grey was represented by counsel and presented witnesses and evidence. The
judicial panel affirmed Grey’s termination in a written order dated August 14,
2002.
Grey filed a charge of discrimination with the EEOC on January 22, 2004.
The EEOC determined that “the evidence obtained during the investigation does
not establish a violation of [Title VII].”
Grey, initially proceeding pro se, filed suit in district court on May 28,
2004. The Defendants filed motions to dismiss and motions for judgment on the
pleadings, to which Grey filed responses. On April 4, 2005, five months before
the discovery deadline, Grey served interrogatories and requests for production
on the Defendants. The DISD complied with his discovery request by producing
over 800 pages of business records under Rule 33(d) of the Federal Rules of Civil
Procedure. On May 10, 2005, Grey wrote a letter to the court asserting that the
discovery provided by the DISD was inadequate and that DISD was not willing
to cooperate with him. On August 25, 2005, less than five working days before
the discovery deadline, Grey’s attorney entered a formal appearance for the first
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No. 06-10779
time and noticed the depositions of Vasquez and other DISD personnel. The
Defendants filed motions for protective orders and motions to quash his
depositions, citing that the discovery deadline was August 31, 2005. On August
31, 2005, Grey filed a motion to compel discovery.
On September 30, 2005, Vasquez filed a motion for summary judgment.
On October 27, 2005, DISD filed a motion for summary judgment. Grey never
filed a response. On December 30, 2005, the district court granted summary
judgment in favor of the Defendants. On the same day, the district court denied
as moot Vasquez’s motion to dismiss, DISD’s motion for judgment on the
pleadings, and the Defendants’ motions to compel discovery. The district court
granted the Defendants’ motions for protective orders and motions to quash
arising out of the August 2005 discovery dispute. The district court denied Grey’s
August 31, 2005 motion to compel discovery and found that “the Defendants’
responses to Grey’s discovery requests have been reasonable and complete.”
On January 17, 2006, Grey filed a Rule 59(e) motion to vacate the
judgment and attached additional evidence, including affidavits from several of
Grey’s co-workers. Vasquez filed a motion to strike the additional evidence. On
June 14, 2006, the district court denied Grey’s motion to vacate on the ground
that the evidence he submitted “d[id] not qualify as newly discovered” and
denied Vasquez’s motion as moot.
Grey now appeals the grant of summary judgment, the denial of his
motion to vacate, the denial of his motions to compel and the grant of the
Defendants’ motions for protective orders.
II. STANDARDS OF REVIEW
This Court reviews a grant of summary judgment de novo and applies the
same criteria as the district court. Fed. Deposit Ins. Corp. v. Laguarta, 939 F.2d
1231, 1236 (5th Cir. 1991). As this Court noted in Little v. Liquid Air Corp.:
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No. 06-10779
[T]he party moving for summary judgment must “demonstrate the
absence of a genuine issue of material fact,” but need not negate the
elements of the nonmovant’s case. If the moving party fails to meet
this initial burden, the motion must be denied, regardless of the
nonmovant’s response. If the movant does, however, meet this
burden, the nonmovant must go beyond the pleadings and designate
specific facts showing that there is a genuine issue for trial. . . . We
resolve factual controversies in favor of the nonmoving party, but
only when there is an actual controversy, that is, when both parties
have submitted evidence of contradictory facts. We do not, however,
in the absence of any proof, assume that the nonmoving party could
or would prove the necessary facts.
37 F.3d 1069, 1075 (5th Cir. 1994) (internal citations and quotations omitted).
The district court did not consider the materials Grey submitted with his
Rule 59(e) motion, so we review the court’s order for an abuse of discretion. Ford
Motor Credit Co. v. Bright, 34 F.3d 322, 324 (5th Cir. 1994).
The district court’s discovery rulings are reviewed for abuse of discretion.
Turnage v. Gen. Elec. Co., 953 F.2d 206, 208 (5th Cir. 1992).
III. DISCUSSION
Grey, who is black, alleges that he was discriminated against on the basis
of race within the meaning of Title VII, and that the district court’s refusal to
rule on his motion to compel discovery rendered him unable to prove that he was
treated differently from similarly situated employees of other races. Grey alleges
that he was retaliated against on the basis of his request for an attorney and his
two grievances, and that this violated Title VII’s anti-retaliation provisions. Grey
argues that his termination violated his liberty interest in his reputation and his
property interest in his continued employment with DISD.
Grey did not file a response to the Defendants’ motions for summary
judgment. “Rule 56 does not impose upon the district court a duty to sift through
the record in search of evidence to support a party’s opposition to summary
judgment. Nor is it our duty to do so on appeal.” Stults v. Conoco, Inc., 76 F.3d
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651, 657 (5th Cir. 1996) (internal citations and quotations omitted). Because
Grey did not carry his burden to “designate specific facts showing that there is
a genuine issue for trial,” summary judgment was appropriate. Id. (internal
quotations omitted).
A. Title VII Discrimination
To prevail on his Title VII discrimination claim, Grey must establish a
prima facie case of discrimination. Tex. Dep’t of Community Affairs v. Burdine,
450 U.S. 248, 253 (1981). To establish his prima facie case, Grey must show that
he is a “(1) a member of a protected class; (2) qualified for the position held; (3)
subject to an adverse employment action; and (4) treated differently from others
similarly situated.” Abarca v. Metro. Transit Auth., 404 F.3d 938, 941 (5th Cir.
2005). Once Grey as the plaintiff establishes his prima facie case,
the burden shifts to the defendants to articulate some legitimate,
nondiscriminatory reason for the employee’s rejection. . . . [S]hould
the defendant carry this burden, the plaintiff must then have an
opportunity to prove by a preponderance of the evidence that the
legitimate reasons offered by the defendant were not its true
reasons, but were a pretext for discrimination.
Burdine, 450 U.S. at 253 (internal citations and quotations omitted).
The Defendants admit that Grey meets the first three elements of the
prima facie case for discrimination, but they argue that he has not established
the fourth element. They also argue that Grey’s insubordination and habitual
absences created a legitimate, nondiscriminatory reason for his termination. The
district court found that Grey failed to establish a prima facie case of
discrimination because he did not establish that he was treated differently from
similarly situated employees of other races. The district court also noted that
Grey did not attempt to show that the Defendants’ legitimate nondiscriminatory
reasons for their actions were pretextual. On appeal, Grey admits that he had
submitted no summary judgment evidence comparing himself to similarly
situated non-blacks. Because Grey failed to establish a prima facie case of race
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No. 06-10779
discrimination, we affirm summary judgment as to Grey’s Title VII
discrimination claim. Id.B. Title VII Retaliation
To establish a claim for Title VII retaliation, Grey “must make a prima
facie showing: (1) that [he] engaged in activity protected by Title VII, (2) that an
adverse employment action occurred, and (3) that a causal link existed between
the protected activity and the adverse action.” Banks v. E. Baton Rouge Parish
Sch. Bd., 320 F.3d 570, 575 (5th Cir. 2003) (internal quotations omitted). On
appeal, Grey claims that he was retaliated against for telling Portley and
Claxton that they should speak to his attorney, filing the February 15, 2002
grievance to protest the insubordination investigation, and filing the May 2,
2002 grievance to protest being recommended for termination. The district court
found that Grey failed to establish a prima facie case of Title VII retaliation
because he did not demonstrate that he engaged in protected activity. Upon
review of the record, we affirm.
“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 v.
Adm’rs of the Tulane Educ. Fund, 284 F.3d 642, 657 (5th Cir. 2002) abrogated
on other grounds by Burlington N. & Santa Fe Ry. Co. v. White, 126 S.Ct. 2405,
2412–13 (2006)). Here, Grey failed to prove that he engaged in activities
protected under Title VII. Grey’s first allegedly protected activity consisted of his
statement to his superior officers, “you want to talk, we can talk to my attorney.”
Grey’s second allegedly protected activity, his February 15, 2002 grievance,
similarly did not refer to race, but claimed retaliation for “free speech.” Grey’s
May 2, 2002 grievance stated that he was being terminated “strictly in
retaliation in which Chief Manny Vasquez has taken out against me because of
the grievance I filed for making such retaliatory comments and act of displaying
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No. 06-10779
discriminatory practices.” In other words, Grey alleged in his second grievance
that he was being retaliated against for filing the first grievance. Like the first
grievance, the second grievance did not mention race. Both of Grey’s formal
grievances related to the same initial incident with his superiors, in which there
was no mention of race nor any allegation of discrimination. The district court
correctly concluded that Grey’s retaliation claim failed because he did not show
that he opposed activities protected under Title VII. See Banks, 320 F.3d at 575.
C. § 1983 Liberty Interest
Grey asserts that his termination violated his Fourteenth Amendment due
process rights because he was a public employee “terminated for reasons that
were false, publicized and stigmatizing.” The district court rejected this claim
and held that Grey “did not have a protected liberty interest in his reputation
and good name as a matter of law.” We affirm. This Court has stated that “mere
injury to reputation, even if defamatory, does not constitute the deprivation of
a liberty interest.” Finch v. Fort Bend Indep. Sch. Dist., 333 F.3d 555, 561 n.3
(5th Cir. 2003) (rejecting a former school principal’s claim of a liberty interest in
her good name). The district court correctly rejected Grey’s § 1983 liberty claim.
D. § 1983 Property Interest
Grey asserts that he has a protected property interest in his continued
employment with DISD and that he was deprived of this interest without due
process of law. The district court rejected this claim because Grey failed to
demonstrate that he had a protected property interest in his employment. We
affirm. Texas is an at-will employment state, and therefore Grey bears the
burden of proving the existence of a contract establishing a property interest in
his continued employment. Schultea v. Wood, 27 F.3d 1112, 1116 (5th Cir. 1994),
reh’g en banc granted, 47 F.3d 1427 (1995). Grey did not point to any contract
which altered his employment at-will status. The Defendants submitted
affidavits and DISD policies showing that as support staff, Grey did not have a
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No. 06-10779
written contract and was an at-will employee. We find that Grey lacked a
protected property interest in his DISD employment and we affirm the district
court’s grant of summary judgment on Grey’s § 1983 property interest claim.
E. Discovery Motions
Grey appeals the district court’s discovery rulings. He alleges that the
district court abused its discretion by not granting his motions to compel and by
quashing his depositions of the Defendants on the same day that it granted
summary judgment against him. We find that the district court did not abuse its
discretion and we affirm.
With regard to his motion to compel, Grey notes that DISD released
hundreds of pages of information from its grievance files but “refused to identify
the participants by race.” Grey states that without this information, he was
unable to establish his Title VII claim of race discrimination. This argument is
without merit for a number of reasons, including the fact that Grey could have
relied on other evidence (including, for example, co-worker affidavits) to
establish a genuine issue of material fact regarding DISD’s disparate treatment
of black security officers. Instead, Grey chose not to respond to the Defendants’
motion for summary judgment. He now bears the consequences of that decision.
In ruling on Grey’s motion to compel, the district court found that the
DISD’s discovery responses were “reasonable and complete.” If Grey required
further discovery in order to respond to the Defendants’ motions for summary
judgment, he should have requested a continuance under Rule 56(f). See
Washington v. Allstate Ins. Co., 901 F.2d 1281, 1285 (5th Cir. 1990). Grey
neither filed such a motion nor a response to summary judgment showing why
he was entitled to trial.
Even if we accept Grey’s contention that additional discovery would have
enabled him to prove his Title VII race discrimination claim, we are not required
to find that the district court abused its discretion by denying his motion to
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No. 06-10779
compel discovery, because it was filed on the day of the discovery deadline after
an extensive discovery period. Turnage v. Gen. Elec. Co., 953 F.2d 206, 209 (5th
Cir. 1992) (holding that the district court did not abuse its discretion when it
denied plaintiff’s request to conduct potentially dispositive discovery, “given (i)
the imminence of trial, (ii) the impending discovery deadline, and (iii) [plaintiff’s]
failure to request an inspection earlier”). The district court did not abuse its
discretion when it denied Grey’s motion to compel.
Grey also challenges the district court’s decision to grant the Defendants’
motions to quash and motions for protective orders. His claims are without
merit. Granting protective orders because of impending discovery deadlines is
not an abuse of discretion. Id. Grey noticed the August 29-30, 2005 deposition
of two DISD employees on August 26, 2005. The discovery deadline set by the
district court was August 31, 2005. The district court did not abuse its discretion
when it granted the Defendants’ discovery motions.
F. Motion to Vacate
Following the entry of summary judgment, Grey filed a Rule 59(e) motion
to vacate. The district court denied the motion. Rule 59(e) motions to vacate or
amend a judgment “must clearly establish either a manifest error of law or fact
or must present newly discovered evidence.” Simon v. United States, 891 F.2d
1154, 1159 (5th Cir. 1990) (internal quotations omitted). The district court
correctly stated that the additional evidence Grey appended to his motion to
vacate (principally affidavits from Grey’s former co-workers) was fully available
to Grey at the time of summary judgment. The district court did not abuse its
discretion when it denied Grey’s motion to vacate, and we affirm.
IV. CONCLUSION
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No. 06-10779
The opinion and order of the district court granting summary judgment is
AFFIRMED.
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