Evans v. Texas Dept. of Transp., Civil Action No. 1:06-CV-166.

CourtUnited States District Courts. 5th Circuit. United States District Court of Eastern District Texas
Citation547 F.Supp.2d 626
Docket NumberCivil Action No. 1:06-CV-166.
PartiesDiana L. EVANS, Plaintiff, v. TEXAS DEPARTMENT OF TRANSPORTATION, Defendant.
Decision Date02 October 2007
547 F.Supp.2d 626
Diana L. EVANS, Plaintiff,
Civil Action No. 1:06-CV-166.
United States District Court, E.D. Texas.
October 2, 2007.

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Ellen Sprovach, Gregg M. Rosenberg & Associates, Houston, TX, for Plaintiff.

Walter Clyde Brocato, Attorney General's Office, Austin, TX, for Defendant.


MARCIA A. CRONE, United States District Judge.

Pending before the court is Defendant Texas Department of Transportation's ("TxDOT") Motion for Summary Judgment (# 28). Defendant seeks summary judgment on Plaintiff Diana L. Evans's ("Evans") claims of retaliation and employment discrimination based on race, gender, age, and disability, which she brings pursuant to Title VII of the Civil Rights Act of 1964, as amended ("Title VII"), 42 U.S.C. §§ 2000e-2000e-17, the Age Discrimination in Employment Act of 1967, as amended ("ADEA"), 29 U.S.C. §§ 621-634, and the Americans with Disabilities Act of 1990, as amended ("ADA"), 42 U.S.C. §§ 12101-12213. Having reviewed the pending motion, the submissions of the parties, the pleadings, and the applicable law, the court is of the opinion that summary judgment is warranted.

I. Background

Plaintiff Evans was employed by the Beaumont District of Defendant TxDOT from March 1994 until June 18, 2004, when she was terminated for violating two policies listed in TxDOT's Human Resources Manual. At the time of her discharge, Evans was a fifty-seven-year-old white female working as an office manager at the Beaumont District's area maintenance office in Kountze, Texas. Prior to working at the Kountze facility, Evans served as an office manager at TxDOT's Beaumont location. Evans requested a hardship and medical transfer to the Kountze facility in March 2003, citing as justification her recent divorce from a co-worker employed at the Beaumont office, her involvement in a lawsuit, and her stress-related high blood pressure and heart problems. Evans received a hardship transfer to the Kountze Maintenance Office in April 2003.

On or about October 27, 2003, while working at the Kountze facility, Evans lodged a hostile work environment complaint with her supervisor, Todd Dinger ("Dinger"). According to Evans's written complaint, fellow employee Cheryl McCray ("McCray") verbally attacked her in the presence of other co-workers, using abusive and profane language. Evans also reported that McCray's behavior continued at a meeting involving Evans, McCray, Dinger, and Assistant Supervisor Michael Tywater, during which Evans was "subjected

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to intimidating and malicious stares" from McCray, who stated to Evans, "I'm not scared of you." Dinger directed McCray to stop staring at Evans, and Evans asked that the meeting come to a close so that she could take her blood pressure medication. Evans further asserted in her complaint that she was prepared to file a grievance against McCray if the hostile behavior continued; however, it does not appear that Evans ever did so.

In April 2004, at the request of District Engineer John A. Barton, P.E. ("Barton"), a team of employees from TxDOT's Audit Office in Austin performed a Management Directed Review ("MDR") of the Beaumont District to investigate allegations of misconduct made by a former employee.1 As District Engineer, Barton is responsible for managing all aspects of the Beaumont District, including hiring and terminating employees, and all district employees are under his general supervision. Barton has been employed in this position since December 2003.

As part of the MDR, the audit team interviewed each of the sixteen employees working at the Kountze Maintenance Office as well as other district staff. During interviews at the Kountze facility, it came to the attention of the audit team that an office manager, later identified as Evans, may have attempted to convince a coworker to change the beneficiary of his TxDOT retirement benefits. After conducting additional investigation, the audit team concluded that the allegation of misconduct was substantiated. This information was provided to Barton in the audit team's written report, dated May 11, 2004. As a result of the report, on June 1, 2004, Barton asked the district's Internal Review Analyst, LaVerne Danos ("Danos"), and Human Resources Officer, Cheryl Horn ("Horn"), to investigate the allegation further.

On June 7, 2004, Horn interviewed McCray, the Kountze employee who initially brought the allegation to the attention of the audit team. According to Horn's affidavit, McCray revealed that she overheard Evans telling a fellow employee, Dearl Walters ("Walters"), that he needed to change the beneficiary of his retirement benefits from his niece to his sister. McCray also stated that she heard Walters respond repeatedly that he did not wish to change his beneficiary. Subsequent to the conversation between Evans and Walters, Walters asked McCray for the telephone number of Lori Morgan ("Morgan"), the Assistant Human Resources Officer, so that he could verify that his beneficiary had not been changed, purportedly because Evans told him that she was going to handle the paperwork.

McCray also reported to Horn that on another occasion she overheard Evans talking on the telephone with someone Evans referred to as "sister." During that conversation, Evans allegedly discussed Walters's personal business, including the fact that Walters's doctor and bank had called for him at the office. McCray further asserted that she overheard Evans tell "sister" that Walters needed to change his beneficiary from his niece to his sister.

Horn interviewed Walters concerning the above allegations on June 7, 2004. Walters confirmed that Evans told him that his niece "was not doing him right" and that he should change his beneficiary to his sister. Walters responded that he was not interested in altering his designation. Additionally, Walters reported that Evans pressed him to change his beneficiary on approximately three subsequent occasions, to which he again replied that he

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did not want to remove his niece as the beneficiary. Although Walters did not see any paperwork suggesting that his beneficiary had been changed without his approval, he contacted Morgan in Human Resources, as well as Human Resources in Austin, for verification because he was concerned that Evans may have made the changes herself.

On June 8, 2004, Horn interviewed Evans regarding the complaints of Walters and McCray. Evans denied revealing Walters's beneficiary information to a third party and telling Walters that she was ordering the paperwork to effect the change of his beneficiary. Horn reported the information gathered during the interviews of McCray, Walters, and Evans to Barton on June 8, 2004. On June 14, 2004, Barton formally responded to the MDR report, writing that he concurred with the audit team's finding that the allegations against Evans were substantiated. Specifically, Barton stated that an Internal Review Analyst and Human Resources Officer were investigating the matter further and that he was working with other departments to determine the appropriate disciplinary action, if any, to impose on Evans.

In addition to the complaints raised about Evans during the MDR, on June 8, 2004, Barton was informed by the Beaumont District Area Engineer, Duane Browning ("Browning"), that Jimmie Poplin ("Poplin"), District Manager of one of TxDOT's contractors, N-Line, reported to Dinger that Evans had inappropriately contacted N-Line regarding the wages of one its flaggers. In particular, Browning noted that Evans identified herself as a TxDOT employee, failed to reveal that the N-Line flagger in question was her daughter, and failed to disclose that wage rates were not within her area of responsibility at TxDOT. Barton asked Browning to follow up with Poplin directly, who confirmed the allegations on June 14, 2004. Barton also asked Danos to discuss the complaint with N-Line's Human Resources Manager, Justin Ryan ("Ryan"). Danos reported to Barton on June 14, 2004, that Ryan verified the allegations about Evans and her daughter during a telephone conversation Danos had with Ryan concerning the incident.2 According to Ryan, Evans had contacted him several months previously and informed him that one of his flaggers was supposed to have received a raise from $7.00 per hour to $8.00 per hour. Ryan responded that he was unaware of such a change and that he woulc contact Poplin about the correct rate. He commented that Evans identified herself as a TxDOT employee but did not inform him that the inquiry concerned her daughter.

On June 18, 2004, Barton terminated Evans's employment with TxDOT, citing her mishandling of Walters's beneficiary information as well as her contact with N-Line regarding her daughter's wages. With respect to her actions related to Walters, Evans's Disciplinary Action Documentation, which was signed by Barton, Dinger, and Browning, stated that Evans's conduct violated Chapter 8, Section 6, of the TxDOT Human Resources Manual addressing Miscellaneous Prohibited Conduct. In particular, the report stated that "Ms. Evans' position requires her to handle, process, maintain and protect sensitive and confidential information and her actions have violated the trust and accountability expected of her." The report also noted that Evans previously signed an Information

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Resources Confidentiality Agreement on September 16, 2003, outlining her duty to preserve the confidentiality of information.

With respect to Evans's contact with N-Line, Evans purportedly violated Chapter 8, Section 6, of the Human Resources Manual by knowingly making a false representation while acting as a representative of TxDOT. Moreover, Barton found that her actions violated Chapter 8, Section 9, which requires...

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