Garcia v. City of Sherman

• Decision Date: 19 December 2012
• Docket Number: CASE NO. 4:11CV144
• Parties: FRANCISCO GARCIA Plaintiff, v. CITY OF SHERMAN, TEXAS Defendant.
• Court: U.S. District Court — Eastern District of Texas

FRANCISCO GARCIA Plaintiff,
v.
CITY OF SHERMAN, TEXAS Defendant.

CASE NO. 4:11CV144

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS SHERMAN DIVISION

Dated: December 19, 2012

ORDER AND REPORT AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE REGARDING MOTION FOR SUMMARY JUDGMENT

Now before the Court are Defendant's Motion for Summary Judgment (Dkt. 27) and Defendant's Objections to and Motion to Strike Plaintiff's Summary Judgment Evidence (Dkt. 34). As set forth below, the motion to strike (Dkt. 34) is GRANTED in part and DENIED in part and the Court recommends that the motion for summary judgment (Dkt. 27) be DENIED.

FACTUAL BACKGROUND

Plaintiff, Francisco Garcia, was employed by the City of Sherman, Texas for approximately twenty-four years. See Dkt. 18 at ¶ 5. While Plaintiff held various positions within departments in the City of Sherman including code enforcement and water department, at the time of his discharge, Plaintiff was employed in the parks department as a laborer. Id. Plaintiff claims that, on or about March 26, 2010, his supervisor asked him to help translate a contract job from English to Spanish. Id. at ¶ 6. According to Plaintiff, he was not comfortable enough with his Spanish to translate for a contract job. Id. at ¶ 7. Shortly thereafter, Plaintiff claims, he was written up for not one but two

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disciplinary incidents, the first for riding in the back of a trailer, and the second for refusing to translate for the contract job. Plaintiff signed the first write-up but refused to sign the second, claiming translating was not apart of his job duties and that he was unqualified to properly translate. Plaintiff took up the issue with the human resources director, who dismissed Plaintiff for refusing to sign the write up. Plaintiff claims that he was discharged on account of his race.

On or about July 13, 2010, Plaintiff filed a written complaint with the U.S. Equal Employment Opportunity Commission (EEOC). On February 15, 2011, he received the Notice of Right to Sue from the EEOC.

Plaintiff filed suit in this Court on or about March 21, 2011. In his First Amended Complaint, Plaintiff alleges Defendant violated 42 U.S.C.A. 2000e (Unlawful Employment Practices), and Title VII of the Civil Rights Act of 1964.

On April 27, 2012, Defendant filed its motion for summary judgment, seeking summary judgment in its favor and dismissal of all of Plaintiff's claims herein. Plaintiff has filed a response in opposition.¹

SUMMARY JUDGMENT STANDARD

Summary judgment is appropriate when, viewing the evidence and all justifiable inferences in the light most favorable to the non-moving party, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c); Hunt v. Cromartie,

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526 U.S. 541, 549, 119 S. Ct. 1545, 143 L. Ed.2d 731 (1999). The appropriate inquiry is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S. Ct. 2505, 91 L. Ed.2d 202 (1986).

The party moving for summary judgment has the initial burden to prove there are no genuine issues of material fact for trial. Provident Life & Accident Ins. Co. v. Goel, 274 F.3d 984, 991 (5th Cir. 2001). In sustaining this burden, the movant must identify those portions of pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S. Ct. 2548, 2553, 91 L. Ed.2d 265 (1986). The moving party, however, "need not negate the elements of the nonmovant's case." Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc). The movant's burden is only to point out the absence of evidence supporting the nonmoving party's case. Stults v. Conoco, Inc., 76 F.3d 651, 655 (5th Cir. 1996).

In response, the nonmovant's motion "may not rest upon mere allegations contained in the pleadings, but must set forth and support by summary judgment evidence specific facts showing the existence of a genuine issue for trial." Ragas v. Tennessee Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998) (citing Anderson, 477 U.S. at 255-57, 106 S. Ct. at 2513-14). Once the moving party makes a properly supported motion for summary judgment, the nonmoving party must look beyond the pleadings and designate specific facts in the record to show that there is a genuine issue for trial. Stults, 76 F.3d at 655. The citations to evidence must be specific, as the district court is not required

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to "scour the record" to determine whether the evidence raises a genuine issue of material fact. E.D. TEX. LOCAL R. CV-56(d). Neither "conclusory allegations" nor "unsubstantiated assertions" will satisfy the nonmovant's burden. Stults, 76 F.3d at 655.

ANALYSIS

Here, Plaintiff has alleged racial discrimination in violation of 42 U.S.C. § 2000e and Title VII of the Civil Rights Act. The Fifth Circuit has set forth a specific rubric under which this Court must analyze the summary judgment record in the employment discrimination context. The modified McDonnell Douglas test is used when analyzing claims for race discrimination under Title VII. Under the modified McDonnell Douglas approach, a plaintiff must demonstrate a prima facie case of discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed.2d 668 (1973); Rachid v. Jack In The Box, Inc., 376 F.3d 305, 312 (5th Cir. 2004); Willis v. Coca Cola Enters., Inc., 445 F.3d 413, 420 (5th Cir. 2006). In order to establish a prima facie case of race discrimination, a plaintiff must show: (1) he is a member of a protected group; (2) he was qualified for the position; (3) an adverse employment action occurred; and (4) he was treated less favorably because of his membership in that protected class than were other similarly situated employees who were not members of the protected class, under nearly identical circumstances. Wesley v. General Drivers, Warehousemen and Helpers Local, 745 660 F.3d 211, 213 (5th Cir. 2011). See also St. Mary's Honor Center, 509 U.S. 502, 506, 113 S. Ct. 2742, 2747 (1993); McCoy v. City of Shreveport, 492 F.3d 551, 556 (5th Cir. 2007); Pegram v. Honeywell, Inc., 361 F.3d 272, 281 (5th Cir. 2004).

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Once established, the prima facie case raises a presumption of discrimination which the defendant must rebut by articulating legitimate, nondiscriminatory reasons for its actions. Rachid v. Jack In The Box, Inc., 376 F.3d 305, 312 (5th Cir. 2004); see also Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142, 120 S. Ct. 2097, 147 L. Ed.2d 105 (2000); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 254-56, 101 S. Ct. 1089, 67 L. Ed.2d 207 (1981). The burden on the employer at this stage is one of production, not persuasion and does not involve any assessment of the employer's credibility. Alvarado v. Texas Rangers, 492 F.3d 605, 611 (5th Cir. 2007).

Once the defendant produces evidence of a legitimate, nondiscriminatory reason for the adverse action, "the presumption of discrimination created by the plaintiff's prima facie case disappears and the plaintiff must meet its ultimate burden of persuasion on the issue of intentional discrimination." Machinchick v. PB Power, Inc., 398 F.3d 345, 350 (5th Cir. 2005). Consequently, the burden shifts back to the plaintiff to show that either: (1) the defendant's reason is not true, but is instead designed to serve as pretext for unlawful discrimination; or (2) that the defendant's reason, while true, is not the only reason for its conduct, and another "motivating factor" is the plaintiff's protected characteristic. Id. at 351-52; Rachid, 376 F.3d at 312 (citation omitted). "[T]he plaintiff must rebut each nondiscriminatory or nonretaliatory reason articulated by the employer." McCoy v. City of Shreveport, 492 F.3d 551, 556-57 (5th Cir. 2007).

In its motion for summary judgment, Defendant makes the following arguments in support of its contention that Plaintiff's claims of racial discrimination should be dismissed: (a) Plaintiff failed to suffer and adverse employment decision; (b) there is no direct evidence of discrimination; and (c) there is no circumstantial evidence of discrimination because Plaintiff has not identified any

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comparator employees and because the City has offered a legitimate and non-discriminatory reason for Plaintiff's termination. See Dkt. 27.

In support of its motion, Defendant has offered the following summary judgment evidence:

(A) Portions of Plaintiff's First Amended Complaint;
(B) Plaintiff's Objections and Responses to Defendant's First Request for Admissions;
(C) Oral Deposition Testimony of Plaintiff Francisco Garcia, provided on April 13,2012;
(D) Portions of the Oral Deposition Testimony of Chris Garner, provided on March 38, 2012;
(E) Portions of the Oral Deposition Testimony of Human Resources Director, Wayne Blackwell, provided on November 30, 2011;
(F) Portions of the Oral Deposition Testimony from Parks and Community Services Department Director, Kevin Winkler,

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