Julian v. City of Hous.
| Decision Date | 31 July 2014 |
| Docket Number | CIVIL ACTION NO. 4:12-cv-2973 |
| Parties | CHARLES H. JULIAN, Plaintiff, v. CITY OF HOUSTON, Defendant. |
| Court | U.S. District Court — Southern District of Texas |
Pending before the Court in this employment discrimination suit is Defendant City of Houston's ("the City") Motion for Summary Judgment. (Doc. No. 35-1.) After reviewing the summary judgment record, the parties' arguments, and the applicable law, the Court is persuaded that Mr. Julian has raised genuine issues of material fact with regard to his race and age discrimination claims involving the failure of the City to allow him to "ride up" in the position of Acting Deputy Chief/Shift Commander in December 2010. The Court cannot conclude, however, that he has done so with respect to the remainder of his discrimination and retaliation claims. Therefore, the Court GRANTS IN PART and DENIES IN PART the City's motion.
Plaintiff Charles Julian is a long-time veteran of the Houston Fire Department ("HFD" or "the Department"). An African-American man born in 1942, Mr. Julian joined the Department in 1968. By 1977, he had been promoted to Captain, and by 1980, he was serving as Senior Captain. In 1984, he was promoted to District Chief. (Doc. Nos. 36-2 at 2.) After unsuccessfully applying for further promotions, Mr. Julian sued HFD for employment discrimination in 1999,and a jury found that HFD had denied Mr. Julian a promotion to Assistant Fire Chief because of his age. See Julian v. City of Houston, No. H-99-0628 (S.D. Tex. filed Mar. 1, 1999). Following an appeal to the Fifth Circuit, HFD promoted Mr. Julian to the position of Assistant Fire Chief in late 2003. (Doc. Nos. 36-1 at 2; 36-2 at 2.) In September 2004, HFD demoted Mr. Julian to the position of District Chief. In 2006, after having pursued administrative remedies with the federal Equal Employment Opportunity Commission ("EEOC") and the Texas Commission on Human Rights ("TCHR"), Mr. Julian again sued HFD, alleging that the demotion was the result of both race and age discrimination, as well as retaliation for having previously sued HFD for employment discrimination. In October 2007, following a bench trial, U.S. Magistrate Judge Frances H. Stacy concluded that Mr. Julian's demotion was due to race and age discrimination and retaliation. Mr. Julian was awarded both backpay and front pay. See Julian v. City of Houston, No. H-06-0220 (S.D. Tex. filed Jan. 20, 2006). Throughout all of this litigation, Mr. Julian claims that he continued - unsuccessfully - to advance within the Department. Specifically, Mr. Julian alleges that he sought several times to work as Acting Deputy Chief/Shift Commander between 1992 and 2011, but was never allowed to work in that position. (Doc. No. 36-1 at 2-3.)
Soon after Annise Parker became Mayor of Houston in 2010, she initiated a search for a new Fire Chief for the Houston Fire Department. (Doc. No. 34-5 at 6:3-7:12.) The City hired an outside firm, Emergency Services Consulting, Inc. ("ESCI"), to conduct the search and to present the Mayor with two candidates.2 (Doc. No. 36-6 at 27:15-28:16.) Mayor Parker told ESCI officials that she wanted a national search, with no preference for either an internal orexternal candidate, and that she wanted a "good thinker" who could "move the department forward." (Doc. No. 36-6 at 29:8-21.)
In January, 2010, Mr. Julian applied for Fire Chief, sending his application directly to Mayor Parker's office, as well as to the City Council, specifically, to then-City Councilmember Jolanda Jones. (Doc. Nos. 36-2, 36-3). In mid-February, Ms. Jones forwarded Mr. Julian's application to Mayor Parker. She recommended him for the Fire Chief position, stating that Mr. Julian is not (Doc. No. 36-4). Mr. Julian again submitted his application for Fire Chief, this time to ESCI, in accordance with the City's formal Fire Chief selection process, on June 18, 2010. (Doc. No. 36-7.) In all, twenty-four applicants were considered for the Fire Chief position. ESCI first narrowed the field to twelve semifinalists based on their applications, and written answers to submitted questions. (Doc. No. 36-6 at 106:1-5; 36-12 at 2-3.) Mr. Julian was not selected as a semifinalist; therefore, his application did not advance beyond the initial stage. (See Doc. Nos. 36-13, 36-14.) ESCI then conducted telephone interviews with the semifinalists and narrowed the twelve-person semifinalist pool further to a group of seven. (Doc. Nos. 36-6 at 106:10-107:1; 36-15.) From that seven-person group, ESCI selected two applicants to submit to Mayor Parker: Rick Flanagan, who is African-American, and Terry Garrison, who is Caucasian. (Doc. No. 36-6 at 154:13-20.) On August 25, 2010, the City announced that Terry Garrison was chosen as Houston's next Fire Chief. (Doc. No. 36-21.)
In November 2010, Mr. Garrison announced that he would be creating a new, eighth Deputy Chief/Shift Commander position. In a memorandum circulated that month, Carl E. Matejka, Acting Executive Assistant Fire Chief, announced that HFD would be accepting applications to fill the new Deputy Chief/Shift Commander position on a temporary basis, until apermanent Deputy Chief/Shift Commander was hired. (Doc. Nos. 36-18; 36-17 at 57:5-58:11.) Mr. Julian applied for this position, but, in December 2010, it was awarded to Richard Mann, Greg Lewis, and Mark Donovan. (Doc. No. 36-23 at 23:16-21.) Mr. Mann and Mr. Donovan are Caucasian, while Mr. Lewis is African-American. (Doc. No. 36-23 at 25:3-4, 6-13, 26:2-3.) All are younger than Mr. Julian. (Doc. No. 36-23 at 25:18-26:1.)
Mr. Julian filed an EEOC and TCHR complaint on February 1, 2011 alleging that 1) he had received low performance evaluations since 2005; 2) he was denied the position of Fire Chief in June 2010; 3) he had been denied Acting Deputy Chief/Shift Commander positions from 1992-2011, and; 4) that he was denied the new Deputy Chief/Shift Commander position in 2010, all because of race and age discrimination and retaliation. (Doc. No. 36-1.) On June 4, 2012, Mr. Julian sued the City concerning these employment decisions in state court under the Texas Commission on Human Rights Act, Texas Labor Code §§ 21.001-21.556 ("TCHRA"). The City removed the case to this Court in October 2012, following Mr. Julian's addition of allegations under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17 ("Title VII"), and the Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621-634 ("ADEA"). The pending motion followed.
Under Federal Rule of Civil Procedure 56, summary judgment is warranted if no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Importantly, "the mere existence of some factual dispute will not defeat a motion for summary judgment; Rule 56 requires that the fact dispute be genuine and material." Willis v. Roche Biomed. Lab., 61 F.3d 313, 315 (5th Cir. 1995). Material facts are those whose resolution "might affect the outcome ofthe suit under the governing law . . . ." Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A dispute is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. (citing Anderson, 477 U.S. at 248). A court may consider any evidence in the record, "including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials." Fed. R. Civ. P. 56(c)(1)(A). However, neither conclusory allegations nor hearsay, unsubstantiated assertions, or unsupported speculation will suffice to create or negate a genuine issue of fact. McIntosh v. Partridge, 540 F.3d 315, 322 (5th Cir. 2008); Eason v. Thaler, 73 F.3d 1322, 1325 (5th Cir. 1996); Reese v. Anderson, 926 F.2d 494, 498 (5th Cir. 1991); Shafer v. Williams, 794 F.2d 1030, 1033 (5th Circ. 1986); see Fed. R. Civ. P. 56(c)(4).
The moving party bears the burden of demonstrating that there is no genuine dispute as to any material fact, but it need not negate the elements of the nonmoving party's case. Fed. R. Civ. P. 56(a); Willis, 61 F.3d at 315 (citing Celotex, 477 U.S. at 322-23); Boudreaux v. Swift Transp. Co., Inc., 402 F.3d 536, 540 (5th Cir. 2005). If the burden of proof at trial lies with the nonmoving party, the moving party may satisfy its initial burden by "'showing'—that is, pointing out to the district court—that there is an absence of evidence to support the nonmoving party's case." Celotex, 477 U.S. at 325. However, "[i]f the moving party fails to meet [its] initial burden, the motion must be denied, regardless of the nonmovant's response." United States v. $92,203.00 in U.S. Currency, 537 F.3d 504, 507 (5th Cir. 2008) (quoting Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc)).
Once the moving party has met its burden, the nonmoving party must come forward with specific evidence and articulate how it supports its claim. Baranowski v. Hart, 486 F.3d 112, 119(5th Cir. 2007). Simply resting on the allegations in the pleadings will not suffice. Neither will this burden be satisfied "by 'some metaphysical doubt as to the material facts, by conclusory allegations, by unsubstantiated assertions, or by only a scintilla of evidence.'" Boudreaux, 402 F.3d at 540 (quoting Little, 37 F.3d at 1075). In deciding a summary judgment motion, the court must draw all reasonable inferences in the light most favorable to the nonmoving party, and it cannot make credibility determinations or weigh the evidence. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000); Anderson, 477 U.S. at 255; Connors v. Graves, 538 F.3d 373, 376 (5th Cir. 2008).
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