Bettice v. City of New Braunfels
| Decision Date | 17 November 2020 |
| Docket Number | Case No. 5:17-CV-0904-JKP |
| Parties | LESLIE BETTICE, Plaintiff, v. CITY OF NEW BRAUNFELS, Defendant. |
| Court | U.S. District Court — Western District of Texas |
The Court has under consideration Defendant City of New Braunfels' Motion for Summary Judgment (ECF No. 39). Following Plaintiff's response (ECF No. 40) and the City's reply (ECF No. 41), the motion is fully briefed, including evidence submitted by both sides.1 For the reasons that follow, the Court grants the motion.
After being hired by the City of New Braunfels Police Department in August 2007, Plaintiff worked her way from patrol officer to a member of the Gang Offender Narcotic Enforcement Unit to Narcotic Detective. See Pl.'s Decl. (ECF No. 40-1) at 5. Defendant selected her for the latter two positions through competitive selection processes.
In her sworn declaration, Plaintiff chronicles numerous incidents relevant to her claims commencing in October 2007. See, generally, id. at 7-12. In that month, her Field Training Officer ("FTO"), Victor Rocha, propositioned her several times, made crude and sexual commentsabout nearly every woman he saw, told her to contact dispatch every time she needed to use the bathroom because "females just take longer than males," and gave her several poor marks. Id. at 7-8. After she filed a grievance, Rocha was replaced as her FTO, and was later promoted to Senior FTO and then Sergeant. Id. at 8. The filed grievance is "nowhere to be found." Id. That same month, Plaintiff had a gun/safety vest issue with Corporal James Bell, which she believes was inappropriate and would have been handled differently had she been a male. Id. Although Plaintiff did not personally file a grievance on this issue, a fellow officer did on her behalf. Id.
Throughout 2007 and 2008, Plaintiff endured continued false rumors of sexual relations with many officers. Id. Her verbal grievances were met with laughter or instructions to ignore the rumors. Id. In September 2008, she received an email from another officer's (Coty Butcher) wife accusing her of having an affair with her husband. Id. Her filed grievance led to a talk with the officer but no other action. Id. In late 2008, she was one of the last officers to receive a new patrol unit even though officers were supposed to be assigned based upon seniority. Id. at 9. In April 2009, she was replaced by a male in an expensive investigator class because she was pregnant and might leave the department after the birth of the child. Id. On August 23, 2010, she received verbal counseling regarding "the blow out of two tires due to checking [her] computer on the way to a call," when "male officers have had many accidents without being issued a counseling or write up." Id. at 2.
Without connecting the evaluation with sexual harassment in any way, Plaintiff next states that she received a "below average" rating as an officer in November 2013. Id. at 9. Three months later, Corporal Mark Christiansen3 filed a complaint against her for insubordination related to an order regarding collecting EKG strips and the complaint led Chief Wibert to write herup. Id. at 2, 9. She next documents an off-duty encounter with Officer David Cantu in November 2014, when he was intoxicated, repeatedly made propositions and other sexual comments to her, and ultimately bribed her for sex with an offer for her to get into the narcotics unit. Id.at 10. When she refused that offer, he told her "that refusing to have sex with him would be the reason [she] didn't get in the Narcotic Unit." Id. Rather than file a complaint about this incident, Plaintiff asked for advice from a Sergeant. Id.
In March 2015, Plaintiff was counseled because she was late to work when many "male officers have also been late to work without issue." Id. at 2. Two months later, someone complained that she was racial profiling. Id. at 9. After that complaint was cleared, Officer Steven Hannah made a complaint regarding an illegal search, which he sustained but rather than impose punishment, he directed Plaintiff to attend a search/seizure class. Id. at 2, 10-11. The next month, Plaintiff made a sexual harassment complaint on behalf of Officer Werthen, a female officer allegedly sexually harassed by Officer Rocha. Id. at 11. Plaintiff did not file a grievance and Officer Rocha instituted an unfounded complaint against her. Id. That same month, Plaintiff was selected for the gang unit. Id. at 5.
In January 2016, a male applicant was selected for an opening in the narcotics unit and Plaintiff lost a pay increase from his selection even though she "was ranked number one on the selection list" by "several of the deputies on the board." Id. at 1-2. She did not file a grievance due to fear of retaliation and because a second position would be available within a few months. Id. at 2. She was selected for the second opening in April 2016. Id. at 5. In May of that year, she learned of a second investigation regarding Rocha. Id. at 11. On June 14, 2016, she filed a charge of sex discrimination and retaliation with the Equal Employment Opportunity Commission ("EEOC"). Id.
A year later, on June 16, 2017, Plaintiff received a right to sue letter regarding that charge. Id. The next month, the Drug Enforcement Agency showed interest in her for a taskforce but Chief Wibert refused the request because he wanted to select who went to the taskforce. Id. at 11-12. His refusal conflicted with a similar request for a male officer. Id. at 12. In August 2017, the San Antonio Police Department showed interest in her for a taskforce assignment that Chief Wibert also refused. Id.
That same month, Plaintiff was involved in getting a search warrant related to a narcotics operation which required that all warrants be presented to District Attorney ("DA") Jennifer Tharp for approval prior to being tendered to State District Judge Jack Robison. Id. at 2; Letter from Wibert to Plaintiff and Commissioners (Feb. 1, 2018) (on file as ECF No. 39-1 at 1-4) (hereinafter "Termination Letter"). Sergeant Cantu of the Narcotics Unit had informed her that all warrants had to go through the DA's Office. Pl.'s Decl. at 2. He also ordered her to get the search warrant that ultimately led to her termination. Id. at 2-3, 12.
During the course of that operation, Plaintiff presented a search warrant to the DA concerning a suspect's residence wherein the search warrant covered both forfeiture and probable cause. Id. at 2-3. The DA did not approve the warrant and told Plaintiff not to present it to the Judge until the DA did further legal research. Id. at 3. According to Plaintiff, Cantu ordered her to get the warrant completed even though the DA had not approved it. Id. Cantu believed the DA's office was causing problems with the warrants. Id. After he ordered her to complete the warrant, she again tried to obtain approval before going to the Judge for his signature. Id. When she met with Judge Robison, she truthfully explained that the DA had not yet approved the warrant, but it would not be executed without her approval. Id. at 3-4. He signed the warrant after that explanation. See id.
On August 30, 2017, Chief Wibert received a letter from the DA regarding the actions of Plaintiff in securing the Judge's signature on the warrant. See Termination Letter at 2. On September 13, 2017, the department commenced an internal investigation into the circumstances of that warrant, see New Braunfels Police Dep't Personnel Compl. (on file as ECF No. 39-1 at 20-21); accord Pl's Decl. at 12, and Chief Wibert placed her "on administrative leave effective immediately pending the outcome of this internal investigation," Letter from Wells to Wibert (Jan. 3, 2018) (on file as ECF No. 39-1 at 5-18) at 5. Plaintiff commenced this civil litigation on September 14, 2017, alleging discrimination and retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e through 2000e-17. See Compl. (ECF No. 1).
On February 1, 2018, Plaintiff was placed on indefinite suspension. Pl.'s Decl. at 1, 12; Termination Letter at 1. The letter informs Plaintiff of two related grounds for dismissal - insubordination and violations of rules and regulations. Termination Letter at 1-2. The decision was affirmed by the Civil Service Commission on March 19, 2018. Pl.'s Decl. at 12. She filed a second EEOC charge on April 11, 2018, resulting in a second right to sue letter received on November 11, 2018. Id.
In December 2018, the Court granted her unopposed motion to amend her complaint. See Order (ECF No. 14). Plaintiff's First Amended Complaint (ECF No. 15) is now the operative pleading. In that complaint, Plaintiff alleges (1) a sexual harassment complaint made in 2007; (2) she filed a grievance about ongoing sexual harassment by FTO Rocha in 2015; (3) the FTO filed a grievance that commenced an Internal Affairs investigation on September 11, 2015, and the grievance against her was found to be unfounded; (4) as a result of information discovered during that investigation, a second investigation was commenced against the FTO in May 2016; and in retaliation, another unfounded complaint was filed against Plaintiff; and (5) she was terminat-ed on August 7, 2017. First Am. Compl. ¶¶ 14-22. She further alleges that she was treated less favorably than similarly situated male employees, including when she was bypassed for a pay-increasing, narcotics position even though she was ranked first after the process. Id. ¶ 23. She obtained a second narcotics position four months later. Id. She also alleges almost weekly harassment based on her sex thus creating a pervasively hostile work environment. Id. ¶ 24. Lastly, she asserts that Defendant subjected her to ongoing retaliation since she opposed discrimination in mid-2015. Id. ¶ 25. She asserts three causes of action under Title VII: (1) sex discrimination, (2) hostile work-environment, and (3) retaliation. Id. ¶¶ 26-31.
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