Chacko v. Texas a&M University

Decision Date04 April 1997
Docket NumberCivil Action No. H-95-4637.
PartiesJane CHACKO, Plaintiff, v. TEXAS A & M UNIVERSITY, E. Dean Gage, Benton Cocanougher, Emily Ashworth, Violetta Burke Cook, and Suzanne Droleskey, Defendants.
CourtU.S. District Court — Southern District of Texas

Malcolm Greenstein, Greenstein & Kolker, Austin, TX, for Plaintiff.

Suzanne Sturdivant Jones, Office of Attorney General, Austin, TX, for Defendants Texas A&M University, E. Dean Gage, Benton Cocanougher, Emily Ashworth and Suzanne Droleskey.

Leslie B. Vance, Office of Attorney General, Austin, TX, for Defendant Violetta Burke Cook.

MEMORANDUM AND ORDER

CRONE, United States Magistrate Judge.

Pending before the court is Defendants Texas A & M University ("TAMU"), E. Dean Gage ("Gage"), Benton Cocanougher ("Cocanougher"), Emily Ashworth ("Ashworth"), and Suzanne Droleskey's ("Droleskey") Motion for Summary Judgment (# 28). These defendants seek summary judgment on Plaintiff Jane Chacko's ("Chacko") claims alleging discrimination under 42 U.S.C. § 1981, 42 U.S.C. § 1983, and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"). Defendant Violetta Burke Cook ("Cook") has not moved for summary judgment as to the claims asserted against her.

Having reviewed the pending motion, the submissions of the parties, the pleadings, and the applicable law, this court is of the opinion that the motion for summary judgment should be granted in part and denied in part.

I. Background

In May 1993, Chacko, who is a Canadian citizen, began volunteering at TAMU's International Student Services ("ISS") Office in the Sponsored Student Program. At the time, the position of Sponsored Student Specialist in the Sponsored Student Program was vacant. The position of Sponsored Student Specialist entails assisting foreign students who are attending TAMU. In July 1993, Defendant Cook, the Coordinator of Sponsored Student Programs, and Defendant Droleskey, the Director of International Student Affairs and Cook's supervisor, met with Chacko and expressed an interest in hiring her. Because Chacko did not possess the requisite H-1B visa that would permit her to be employed in the United States, Droleskey instructed Cook to determine whether Chacko was eligible for employment and the steps for obtaining a work visa.

On August 2, 1993, Cook sent a letter to Chacko "officially [offering her] the position of Sponsored Student Specialist." The letter included a list of the duties of the position, the salary—$23,120.00, the period of employment —three years, and the start date—October 1, 1993. Cook prepared the letter as part of the paperwork to be submitted to the Immigration and Naturalization Service ("INS") to obtain a work visa for Chacko. Droleskey claims that she was unaware of this letter until November 12, 1993, when Kathryn J. Sands ("Sands"), the Immigration Service Manager at TAMU, informed her of it.

Droleskey sought and was given permission by Defendant Ashworth, Assistant Provost for International Programs and Droleskey's supervisor, to increase the salary of the Sponsored Student Specialist by $120.00 per year to conform with the INS's salary requirements for the hiring of a foreign national in a specialized position. On or about August 27, 1993, TAMU sent all the necessary documents to the INS to enable Chacko to obtain her visa. These documents included: (1) the August 2 employment letter; (2) an application for a visa which stated the "dates of [her] intended employment" and an annual salary of $23,120.00; and (3) a signed Return Transportation Statement authorized by Droleskey, ensuring the "employer would be liable for the reasonable costs of return transportation of the alien if the alien is dismissed from employment by the employer before the end of the period."

In mid-September, Chacko traveled to Vancouver, Canada, at her own expense to complete the visa process. On or about September 20, 1993, Chacko returned from Canada with her approved H-1B visa, which allowed her to begin work October 1, 1993. During that same period, an anonymous letter was sent to United States Congressman Jack Fields ("Congressman Fields") complaining that the ISS office had not followed TAMU's hiring procedure in hiring Chacko. The anonymous letter stated that the Sponsored Student Specialist position was not properly posted, that no applications were accepted, and that "the person responsible for hiring someone for this position opted to arrange for this volunteer worker to obtain an H1-B visa." Specifically, the letter observed:

The point in question is that there was never an opportunity for this position to be offered to an American citizen as the position was never posted or advertised and that by arranging for this H1B [sic] visa there is another U.S. citizen that could possibly have been qualified for the position out of a job at job [sic] paying $23,000 a year.

Subsequently, Congressman Fields wrote the INS, which then forwarded a copy of the anonymous letter to TAMU.

Between September 20 and October 1, Chacko, allegedly unknown to Droleskey or Cook, completed TAMU employment paperwork for the ISS office and gave written authorization for the direct deposit of her paychecks. During the same time period, Droleskey realized that the position had been posted only half a day in violation of TAMU's policy that a position be posted for a minimum of one week. Consequently, Droleskey told Cook to reopen the Sponsored Student Specialist position with TAMU Human Resources. Droleskey also informed Chacko that the position was being posted again in conformance with TAMU policy. Chacko agreed to this procedure with the understanding that she would have to go through the interview process and that there was a possibility that she might not be hired for the position. As a result, the TAMU employment paperwork that Chacko had previously completed was not acted upon.

After the position was reopened and applications were accepted, in late October, Cook and Droleskey chose to interview Chacko as well as two other qualified candidates. According to the defendants, by this time, Droleskey and Cook were aware that Chacko had received her visa, and they considered her the most qualified of the candidates. According to Chacko, on November 8, Cook offered her the position by telephone and advised her that she would begin work on November 10. Chacko also claims that later that same day Droleskey personally congratulated her on receiving the position.

In a meeting on the morning of November 10, 1993, Droleskey announced to the ISS staff either that she "would be hiring" Chacko or that she had already "hired" her. After the announcement, an ISS staff member, David Smotek ("Smotek") complained that Chacko should "not be" or should "not have been" hired. Nathena Watkins ("Watkins"), another ISS staff member, stated in her deposition that Smotek said that it was "unfair and un-American to hire a foreigner." The defendants claim, however, that Smotek complained that Chacko had been offered the position at a earlier date, when she had not obtained the required visa, and that such procedure was against TAMU's hiring policy. Chacko argues that she was hired twice— once by the August 2 letter and again on November 8, while the defendants contend that they were still in the hiring process and she was never hired. Chacko maintains that she began work on November 10, but Droleskey told her to leave later that day because there had been a complaint that a foreigner had been hired.

The defendants assert that on November 12, 1993, Droleskey initiated an investigation of Smotek's complaints. Droleskey's supervisor, Ashworth, confirmed the decision to investigate the matter and decided to suspend the hiring process for the Sponsored Student Specialist position. In late November or early December, Chacko attempted to discuss the situation with Droleskey, who suggested she speak with Ashworth. At her meeting with Ashworth, Chacko claims that Ashworth confirmed that Chacko had been hired but stated that she was "closing" the Sponsored Student Specialist position.

Next, Chacko went to the Interim President of TAMU, Defendant Gage, but she was directed to speak with the Vice President, Defendant Cocanougher. On December 3, 1993, Chacko spoke with and answered questions allegedly posed by Cocanougher and Ruth Prescott ("Prescott"), whom she later learned was an attorney representing TAMU. Chacko claims that at the close of the meeting, Cocanougher promised to telephone her the following Monday, but he never did. Chacko asserts that she was never provided a hearing or given a reasonable explanation for TAMU's actions. Chacko alleges that when she learned she had been fired from the position described in her visa, she had no choice but to break her apartment lease and return to Canada in December 1993.

On January 5, 1993, Droleskey sent a memorandum to Gage through Cocanougher and Ashworth, requesting that Tonya Yurgensen-Jacks ("Yurgensen-Jacks"), who was employed by TAMU as a clerk, be appointed the interim Sponsored Student Specialist for one year, from February 1, 1994, to January 31, 1995, at a salary of $20,000.00. Yurgensen-Jacks, a United States citizen, became the interim Sponsored Student Specialist and, eventually, after posting the position, interviewing, and ranking the applicants, TAMU hired her as the permanent Sponsored Student Specialist.

Chacko filed a charge with the Equal Employment Opportunity Commission ("EEOC") on March 2, 1994, alleging that she had been discriminated against on the basis of her national origin. Chacko initiated this action on September 27, 1995, alleging national origin discrimination. Chacko claims that TAMU violated her rights under Title VII, for which she seeks equitable relief and damages. Chacko alleges that the individual defendants violated 42 U.S.C. §§...

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