CourtUnited States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
PartiesJOSIE R. HERNANDEZ, Plaintiff, v. CITY OF CORPUS CHRISTI, Defendant.
Docket NumberCIVIL ACTION NO. C-10-186
Decision Date17 May 2011

On this day came on to be considered Defendant's Motion for Summary Judgment. (D.E. 25.) For the reasons stated herein, Defendant's Motion for Summary Judgment is GRANTED IN PART AND DENIED IN PART.

I. Jurisdiction

This Court has federal question jurisdiction over this action pursuant to 28 U.S.C. § 1331, as Plaintiff has brought claims under, inter alia, Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII") and the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621 et seq. ("ADEA"). The Court has supplemental jurisdiction, 28 U.S.C. § 1367, over Plaintiff's state law causes of action.

II. Factual Background

This is an employment discrimination and retaliation case brought by Plaintiff Josie Hernandez against her former employer, the City of Corpus Christi. The Court summarizes the relevant facts in this case as follows.

Plaintiff Josie Hernandez began her career with the Corpus Christi Police Department ("CCPD") in 1977, when she was sworn in and assumed her duties as a patrol officer. She was promoted to police lieutenant on December 7, 1993 and tocaptain on October 24, 2000. (D.E. 25-4; D.E. 30-2 at 1.) Plaintiff contends that she should have been promoted beyond the position of captain (namely, to the positions of commander, assistant chief, and police chief), but was passed over for numerous promotions due to her gender (female), national origin (Mexican-American), race (Hispanic), and age (over forty). (D.E. 21.)

In the CCPD, promotions to commander and assistant chief are addressed under the Collective Bargaining Agreement ("CBA") between the City of Corpus Christi and the Corpus Christi Police Officers' Association, which was in effect from August 1, 2006 to July 31, 2010. According to the CBA, Section 13, promotion to commander and assistant chief positions are exempt from the competitive examinations requirement and made by appointment by the police chief, at his discretion. For the position of police commander, the candidate must be a lieutenant or captain with two years of experience in that rank immediately prior to appointment, and have obtained a bachelor's degree within 48 months of the appointment. For the assistant chief position, the candidate must have four years of experience in the rank of lieutenant, captain, or commander immediately prior to appointment, and must have obtained a master's degree within 48 months of appointment. The assistant police chief and police commander positions are not positions to which an individual may formally apply. (D.E. 25-6 at 38-40; D.E. 30-13 at 1.)

Plaintiff specifies several instances in which other, allegedly less qualified individuals outside the protected class were promoted to commander and assistant chief positions over her. Most of these promotions occurred during the period in which BryanSmith was Police Chief of CCPD (D.E. 25-5), and during the tenure of City Manager Angel Escobar.1 Specifically, Plaintiff complains about the following promotions:

(1) Promotion of Captain John Moseley (white male) to Commander (April 16, 2007) and then to Acting Police Chief (August 17, 2009) (See D.E. 25-26.)
(2) Promotion of Captain Mark Schauer (younger white male) to Commander (September 3, 2008) (See DE. 25-8.)
(3) Promotion of Lieutenant Heidi Frese (younger non-Mexican American female) to Commander (September 3, 2008) (See D.E. 25-9.)
(4) Promotion of Mike Walsh (white male) to Assistant Police Chief (September 3, 2008), Acting Police Chief (November 15, 2008), and a job offer for Police Chief. (See D.E. 25-7; D.E. 25-13; D.E. 25-25.)
(5) Promotion of David Cook (younger white male) to Acting Police Commander (September 3, 2008) (See D.E. 25-10; D.E. 25-16); and
(6) Demotion of Police Chief Bryan Smith (younger white male) to Commander (January 5, 2009) (See D.E. 25-15.)

(D.E. 21 at 2-3.) Plaintiff claims that she also experienced a hostile work environment after each promotional bypass, allegedly suffering "insubordination, alienation, exclusion from meetings," and other behaviors. (D.E. 21 at 6.) Believing that these promotional decisions were motivated by improper discriminatory reasons, Plaintiff filed an EEOC Charge of Discrimination against the City on September 16, 2008. In the EEOC Charge, Plaintiff asserted gender, national origin, and age discrimination (but did not specifically assert race discrimination). (D.E. 25-19; D.E. 25-20; D.E. 25-50; D.E. 25-61.)

On November 4, 2008, Plaintiff advised Chief Smith of her intent to retire from CCPD effective January 4, 2009, and Chief Smith approved her retirement. (D.E. 25-11; D.E. 25-14.) Soon thereafter, Chief Smith became embroiled in a personal scandal, and on November 15, 2008, Interim City Manager Escobar placed Smith on administrative leave. (D.E. 25-12; D.E. 25-48 at 4-5.) Assistant Chief Walsh was assigned to serve as Acting-in-Charge Police Chief. Although Chief Smith initially decided to retire rather than be demoted to police commander, he subsequently changed his mind and on January 5, 2009, City Manager Escobar2 demoted him to the position of Police Commander, the position Smith held prior to his promotion.3 Plaintiff's retirement became effective on January 5, 2009. (D.E. 25-47; D.E. 25-48.) 4

Several months later, in June 2009, the City received several open records requests from members of the media. Specifically, on June 9, 2009, Mike Gibson of KIII-TV (the ABC affiliate based in Corpus Christi), requested "[a]ny and all information regarding complaints made by Josie Hernandez and Isaac Valencia." (D.E. 25-17; D.E. 25-18.)5 In response, the City released to Mr. Gibson the EEOC filings by Hernandez and Valencia. (D.E. 25-19.) Shortly thereafter, on June 18, 2009, Sara Foley of the Corpus Christi Caller-Times also submitted an open records request to the City, requesting a copy of Ms. Hernandez's EEOC Complaint. (D.E. 25-20; D.E. 25-21; D.E.25-22; D.E. 25-23.) The City complied with this request as well, providing both a copy of the Notice of the Charge of Discrimination and the Charge of Discrimination. The release included Plaintiff's date of birth. (D.E. 25-24.) Plaintiff soon discovered the release of this information, and on June 25, 2009, sent a letter to EEOC Investigator John Ahlstrom complaining about it. (D.E. 25-57.) Investigator Ahlstrom responded that the release did not violate the law, but that Plaintiff could amend her charge to include a claim of retaliation based upon that release. (D.E. 25-58.) Plaintiff amended her charge on July 24, 2009 to assert claims of retaliation, relating to the release of her EEOC file to the media, and for the instances in which information contained in that file was aired or printed. (D.E. 25-59.)

After investigating Plaintiff's claims, the EEOC issued a Notice of Right to Sue and Dismissal on February 10, 2010, but made no finding of discrimination. (D.E. 2560.) This lawsuit followed.

III. Procedural Background

Plaintiff originally brought this action in the 214th Judicial District Court of Nueces County, Texas, Cause No. 10-02036-F on April 29, 2010. Defendant was served on May 5, 2010, and removed this action to this Court on June 3, 2010. (D.E. 1.) Plaintiff filed her First Amended Complaint on December 30, 2010. (D.E. 21.) As discussed herein, Plaintiff brings claims for discrimination, retaliation, breach of contract, and seeks a declaratory judgment as to whether the release of her birthdate was an invasion of privacy. Defendant filed its Motion for Summary Judgment on March 15,2011. (D.E. 25.) The motion has now been fully briefed and is ripe for adjudication. (D.E. 30; D.E. 40; D.E. 44.) 6

IV. Discussion

Defendant's Motion for Summary Judgment argues that (1) Plaintiff's claims of race, age, gender, and national origin discrimination under Title VII, the ADEA, and the TCHRA should be dismissed both on procedural and substantive grounds; (2) Plaintiff's request for declaratory judgment should be denied because the City complied with applicable law when it released the EEOC charge and Plaintiff's birthdate, (3) Plaintiff's claims under 42 U.S.C. § 1981 and 1983 should be dismissed both on procedural and substantive grounds, and (4) Plaintiff's breach of contract claim should be dismissed on the merits. (D.E. 25.)

The Court briefly considers the applicable summary judgment standard, then turns to the various arguments that Defendant has raised in support of its motion for summary judgment.

A. Summary Judgment Standard

Under Federal Rule of Civil Procedure 56, summary judgment is appropriate if "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The substantive law identifies which facts are material. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Ellison v. Software Spectrum, Inc., 85 F.3d 187, 189 (5th Cir. 1996). A dispute about a material fact is genuine only "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248; Judwin Props., Inc., v. U.S. Fire Ins. Co., 973 F.2d 432, 435 (5th Cir. 1992).

On summary judgment, "[t]he moving party has the burden of proving there is no genuine issue of material fact and that it is entitled to a judgment as a matter of law." Rivera v. Houston Indep. Sch. Dist., 349 F.3d 244, 246 (5th Cir. 2003); see also Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party meets this burden, "the non-moving party must show that summary judgment is inappropriate by setting forth specific facts showing the existence of a genuine issue concerning every essential component of its case." Rivera, 349 F.3d at 247. The nonmovant's burden "is not satisfied with some...

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