246 F.3d 344 (5th Cir. 2001), 99-20778, Evans v City of Houston

Docket Nº:99-20778
Citation:246 F.3d 344
Party Name:LEE W EVANS Plaintiff-Appellant v. THE CITY OF HOUSTON Defendant-Appellee
Case Date:March 21, 2001
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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246 F.3d 344 (5th Cir. 2001)

LEE W EVANS Plaintiff-Appellant


THE CITY OF HOUSTON Defendant-Appellee

No. 99-20778

United States Court of Appeals, Fifth Circuit

March 21, 2001

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[Copyrighted Material Omitted]

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Appeal from the United States District Court for the Southern District of Texas

Before KING, Chief Judge, PARKER, Circuit Judge, and FURGESON,[*] District Judge.

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FURGESON, District Judge:

This is an employment discrimination case. In it, we consider the district court's grant of summary judgment dismissing the Plaintiff-Appellant's claims of racial and age discrimination and retaliation under Title VII, the ADEA, and Texas law. We also consider the role and scope of 42 U.S.C. § 1981 in racial discrimination suits against a municipality. For the following reasons, we AFFIRM in part, REVERSE in part, and REMAND for further proceedings consistent with this opinion.


Lee Evans, a forty-eight year old African American woman, is a nurse for the City of Houston (the "City") in its Health and Human Services Department (the "Department"). On May 23, 1994, Rosa Abram, Evans's supervisor, recommended that Evans be promoted from her Nurse II position to a Nurse III position. The promotion became official on August 16, 1994. It is the policy of the Department to require that all newly promoted employees serve a six-month probationary period.

On January 6, 1995, within her probationary period, Evans appeared at a scheduled grievance hearing to testify on behalf of Ghyslain Gentle, a co-worker, about allegations of racial and age discrimination. The hearing did not occur as planned, however, and was postponed until February 8, 1995. On January 11, 1995, five days after Evans appeared to testify at the grievance hearing, Rosa Abram recommended that Evans be demoted. Evans was notified of the demotion on February 17, 1995. There is some dispute between the parties as to when Evans was actually demoted. There are four separate dates on the memorandum informing Evans of her demotion. Two of the dates fall inside the six-month probationary period; two do not. Evans claims that the City backdated her demotion to fall within the probationary period. The City does not address this issue.

In July 1995, Evans was suspended for alleged misbehavior. In November 1996, Evans informed the City that she had hired legal counsel. The City again suspended Evans in February 1997, based on misbehavior the City claimed occurred in September and October of 1996. The City also claims that Evans had a history of disciplinary problems; however, none of these alleged problems were documented until after Evans was demoted.


After exhausting her administrative remedies, Evans sued the City. She claimed racial discrimination and retaliation in violation of 42 U.S.C. §§ 2000e-2(a) and 2000e-3(a) (1994) ("Title VII"), age discrimination under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 623(d) (1999), and employment discrimination and retaliation under the Texas Commission on Human Rights Act ("TCHRA"), Tex. Lab. Code Ann. §§ 21.051 and 21.055 (Vernon 1998). Evans also brought a claim of racial discrimination under 42 U.S.C. § 1981.

The district court granted the City's Motion for Summary Judgment on all counts. Evans moved for reconsideration, but withdrew the request on her own motion. Evans then filed this appeal.


We review de novo a district court's grant of summary judgment. See Walker v. Thompson, 214 F.3d 615, 624 (5th Cir. 2000). Summary judgment is appropriate "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

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any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). "If the moving party meets the initial burden of showing there is no genuine issue of material fact, the burden shifts to the nonmoving party to produce evidence or designate specific facts showing the existence of a genuine issue for trial." Allen v. Rapides Parish Sch. Bd., 204 F.3d 619, 621 (5th Cir. 2000) (internal quotations and citation omitted). Doubts are to be resolved in favor of the nonmoving party, and any reasonable inferences are to be drawn in favor of that party. See Burch v. City of Nacogdoches, 174 F.3d 615, 619 (5th Cir. 1999).


A. The District Court's Order

The district court first addressed the Title VII claims, evaluating Evans's racial discrimination allegation pursuant to the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under McDonnell Douglas, a plaintiff must first establish a prima facie case of discrimination. See id. at 802. The district court found that, to do so, a plaintiff must show (1) that she belongs to a racial minority; (2) that she applied and was qualified for a job for which the employer was seeking applicants; (3) that, despite her qualifications, she was rejected; and (4) that, after her rejection, the position remained open and the employer continued to seek applicants from persons of the complainant's qualifications. See id.

The court held that Evans could not meet the third prong of the test, finding that simply because she had the requisite educational qualifications for the promotion and simply because she received a letter of commendation from her supervisor, she had not made a prima facie showing that she was rejected despite her qualifications. The court held further that Evans failed to make a prima facie showing on prong four of the McDonnell Douglas test, finding that she had not addressed the issue in anything other than in a conclusory fashion. By determining that Evans had failed to make out even a prima facie case of discrimination, the district court decided that there was no need to address the remainder of the McDonnell Douglas framework.

The district court then evaluated Evans's age discrimination claim under the ADEA, employing this court's analytical framework as announced in Meinecke v. H & R Block, 66 F.3d 77 (5th Cir. 1995). According to the district court, to make out a prima facie case of age discrimination, a plaintiff must show (1) that she was a member of the protected class (being over forty years old); (2) that she was qualified for the position; (3) that she was discharged; and (4) that she was either replaced by someone outside the protected class, replaced by someone younger (but nevertheless over forty), or otherwise discharged because of her age. See id. at 83. The district court held that Evans failed to meet prongs two, three, and four. The court found that Evans had not shown that she was qualified for the Nurse III position.1 The court also held that, as a matter

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of law, a demotion could not satisfy the third prong of the prima facie showing because only an actual discharge would suffice. Lastly, the court found that Evans had failed to provide any evidence on the fourth prong of the test.

Finally, the district court examined Evans's claim of employment discrimination under the TCHRA. The court first found that Evans exhausted her administrative remedies, as is required under the TCHRA. The court then held that the TCHRA is coextensive with Title VII and the ADEA. Cervantez v. Bexar County Civil Serv. Comm'n, 99 F.3d 730, 734 n.6 (5th Cir. 1996); Schroeder v. Tex. Iron Works, Inc., 813 S.W.2d 483, 485 (Tex. 1991). The court referenced its earlier findings and holdings with respect to Evans's Title VII and ADEA claims and granted summary judgment for the City.

B. Analysis

We conclude that the district court correctly granted summary judgment in favor of the City on Evans's discrimination claims. Claims of racial discrimination under Title VII,2 age discrimination under the ADEA,3 and racial and age discrimination under the TCHRA4 are all evaluated within the same analytical framework. See LaPierre v. Benson Nissan, Inc., 86 F.3d 444, 448 (5th Cir. 1996) (Title VII); Bodenheimer v. PPG Indus., Inc., 5 F.3d 955, 957 (5th Cir. 1993) (ADEA); Specialty Retailers, Inc. v. DeMoranville, 933 S.W.2d 490, 492 (Tex. 1996) (TCHRA). The district court correctly identified the framework as the one announced in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

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The Supreme Court developed the McDonnell Douglas scheme to deal with cases in which discrimination can be proved only by circumstantial evidence. In such cases, a plaintiff must first prove a prima facie case of discrimination. See Reeves v. Sanderson Plumbing Prods., Inc., 120 S.Ct. 2097, 2106 (2000); see also Russell v. McKinney Hosp. Venture, 235 F.3d 219, 222 (5th Cir. 2000). In this case, Evans can establish a prima facie case of racial discrimination by showing (1) that she was a member of a protected class, i.e., a member of a racial minority for her Title VII and TCHRA claims; (2) that she was qualified for the position of Nurse III; (3) that she was demoted despite her qualifications; and (4) that after the demotion, the job remained open, and applications were accepted. See McDonnell Douglas, 411 U.S. at 802; Russell, 235 F.3d at 223-24. Furthermore, for a prima facie case of age discrimination, the factors essentially remain the same; however, a plaintiff must show for the first factor that she was over the age of forty when the discrimination occurred, and the fourth factor requires that the plaintiff demonstrate that she was replaced by someone outside her protected class, someone younger, or was otherwise discharged because of age. See Russell, 235 F.3d at 223-24.

If a plaintiff is successful in establishing a prima facie case of discrimination, the burden then shifts...

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