Levias v. Texas Dept. of Criminal Justice, CIV.A.H-02-4142.

Decision Date15 April 2004
Docket NumberNo. CIV.A.H-02-4142.,CIV.A.H-02-4142.
Citation352 F.Supp.2d 751
PartiesOscar LEVIAS, Plaintiff(s) v. TEXAS DEPT. OF CRIMINAL JUSTICE, Defendant(s)
CourtU.S. District Court — Southern District of Texas

Jo Ann Miller, Law Office of Jo Miller, Conroe, TX, for Plaintiff.

Karen D. Matlock, Office of Attorney General, Austin, TX, for Defendant.

MEMORANDUM AND ORDER

HARMON, District Judge.

Pending before the Court are Defendant's motion for leave to file a motion for summary judgment (Doc. 31) and motion for summary judgment (Doc. 32). Defendant's motion for leave is GRANTED. For the reasons set forth below, Defendant's motion for summary judgment is GRANTED-IN-PART and DENIED-IN-PART.

I. BACKGROUND AND RELEVANT FACTS

This is a Title VII failure to promote and retaliation case. Plaintiff Oscar Levias ("Levias"), an African-American male, began working for Defendant Texas Department of Criminal Justice ("TDCJ") in 1982. In 1994 Levias applied for and received a promotion to an Industrial Specialist III position in the Texas Correctional Industries ("TCI") division of TDCJ. By way of background, TCI operates approximately 40 factories within the TDCJ prison system and employs approximately 600 civilians and 6000 inmates.1 Since his 1994 promotion, which was his last promotion at TDCJ, Levias has worked at TCI's Wynne Box Factory (the "Box Factory"). Levias asserts that from early 1998 until November 2000 he worked as the de facto Assistant Plant Manager of the Factory, performing the duties of an Assistant Plant Manager (i.e., above and beyond the duties of his lower pay grade Industrial Specialist III position) without commensurate pay and benefits.2 Levias further asserts, without opposition, that during that time period every other TCI factory actually had a formally employed Assistant Manager.3 On October 28, 1999, the Manager of the Box Factory, Greg Irving ("Irving"), an African-American male, prepared a Decision Memorandum requesting that Levias be promoted to Assistant Plant Manager.4 Irving also asserts that Levias would act as de facto Plant Manager when he was absent and that he "attempted, on several occasions," to get Levias "either an upgrade to assistant plant manager or an upgrade in pay status."5

Irving's Decision Memorandum was sent to, inter alia, Tony D'Cunha ("D'Cunha") and John Benestante ("Benestante"). D'Cunha was TCI's Operations Manager and later its Assistant Director. Benestante was TCI's Assistant Director and later its Director. The parties do not dispute that at all relevant times Benestante was the highest-ranking official in TCI.6 Levias initially did "not dispute John Benestante's assertion that he did not know Plaintiff or Plaintiff's race prior to May or June of 2001."7 Recently, however, Levias informed the Court that he now asserts that he had "ongoing face to face contact" with Benestante since at least 1996.8 Levias also specified that he has had similar contact with D'Cunha since at least 1999.9 These issues, which given the current record before the Court will turn on the credibility of the witnesses in this case, are contested issues of fact for the jury. In any case, Irving's request (in the October 1999 Decision Memorandum) that Levias be promoted to Assistant Plant Manager was denied. Subsequently, in November 2000, D'Cunha recommended and Benestante agreed to "administratively reassign" Danny Ticknor ("Ticknor") to serve as Assistant Plant Manager of the Wynne Box Factory. At the time of his reassignment Ticknor, a white male, was the Assistant Plant Manager of the Wynne Sign and Plastics Factory (the "Sign Factory") and, like Levias, had been employed by TDCJ for approximately 18 years. There is no dispute that during Ticknor's tenure the Sign and Plastics Factory "was mismanaged" due to "some problems which Ticknor and the Sign Factory Plant Manager Ronnie Cannon had with operations."10 There is also no dispute that when the decision to "administratively reassign" Ticknor to the Box Factory as Assistant Plant Manager was made D'Cunha (1) was aware that Levias had previously sought the position, (2) was aware that Levias still wanted the position, and (3) was aware that Irving, the Box Factory Manager, thought Levias should be promoted to the position.11 TDCJ provided the following explanation: "While Benestante could have brought formal disciplinary charges against either Ticknor or Cannon, he chose not to because both were long-term employees without any recent disciplinary infractions. In that type [of] situation, it is Benestante's philosophy to try to find new areas of responsibility for employees which will better fit their talent and experience."12 Ticknor's "reassignment" left a void in the Assistant Plant Manager position at the Sign Factory, which D'Cunha and Benestante subsequently filled by promoting someone within the factory.13

The second employment decision relevant to this case concerns the appointment of Alan Albright to the position of Plant Manager of the Box Factory. In April 2001 Benestante reassigned Irving from his position of Plant Manager of the Box Factory to a position on TCI's Quality Assurance Review team ("QAR"). Contemporaneously, and without advertising the position, Benestante assigned Alan Albright, a white male, to Irving's former position.14 Prior to this assignment, Albright had spent four years as Plant Manager of another TCI factory and had worked for several months on the QAR. Feeling that he was qualified for and should have been promoted to Irving's position, Levias filed an internal grievance with TDCJ on or about May 2, 2001.15 Subsequently, in June 2001, Levias filed a complaint with the Equal Employment Opportunity Commission ("EEOC"), naming Benestante, D'Cunha, and the TDCJ as respondents.16 In his complaint Levias pointed to both the Ticknor and Albright assignments as instances of discriminatory failures to promote him. Subsequently, in January 2002, Ticknor retired and an opening for the Assistant Plant Manager position at the Factory was posted. Levias submitted an application for the position and was interviewed during the hiring process by Henry Spikes ("Spikes"), whom Defendants inform the Court is an African-American.17 In February 2002 the third and final employment decision relevant to this case occurred when the Assistant Plant Manager position was awarded to James McDaniel, a white male.

There is no dispute that D'Cunha was the selecting authority for all employees at TCI,18 and that in particular he was the official selecting authority with respect to the hiring of McDaniel.19 Nevertheless, D'Cunha has stated that, because Levias "had filed a charge of race discrimination for him not being selected as Plant Manager of the Box Factory," he "asked Mr. Henry Spikes to make the selection" of who should replace Ticknor.20 Thus, while there is no dispute that D'Cunha was the official decision maker, the parties appear to dispute whether D'Cunha or Spikes actually made the decision to hire McDaniel and not Levias. There is no dispute, however, that (1) by the time Ticknor retired and the Assistant Plant Manager position came open both D'Cunha and Benestante were aware that Levias had filed an EEOC complaint naming them as respondents and that an EEOC investigation had begun;21 and (2) prior to the applicants' interviews D'Cunha talked to Spikes about Levias's having filed the EEOC charge.22

On February 8, 2002, the EEOC investigator issued his determination with respect to Levias's first charge of discrimination. The investigator concluded that:

Examination of the evidence reveals that Charging Party has been employed with the Department since February 1, 1982, and that Charging Party has functioned as the Assistant Plant Manager-without the pay or title-for the past 3 years. The investigation revealed evidence that for several years Charging Party's supervisor made requests that Charging Party be granted a promotion based on his performance, duties and responsibilities. Respondent's officials were aware of the request of Charging Party's supervisor, but routinely denied his request to provide Charging Party with any promotion. Respondent's position was that Charging Party was never denied a promotion because the position in question was filled by an employee who received a lateral transfer. Based on the evidence, Respondent laterally transferred an Assistant Plant Manager from the Signs and Plastics facility, which created a void in the area for an Assistant Plant Manager. Respondent then promoted an employee to the position of Assistant Plant Manager in the Signs and Plastics Factory. The effect and purpose of these personnel decisions was to discriminate against Charging Party because of his race.

Finally, the Commission's interviews with management officials regarding Charging Party's allegations contained several inconsistencies. Respondent failed to provide Charging Party with the opportunity to be promoted, even though it was fully aware of not only his desire to perform in the position [but also of] the fact that for several years he functioned as the de facto Assistant Plant Manager.

Based on the weight of the evidence, the Commission concludes that Respondent is in violation of the Civil Rights Act of 1964, as amended, by denying Charging Party promotions because of his race.23

Subsequently, in March 2002, Levias received the worst performance evaluation he had ever received during his twenty years at TDCJ, signed by both Albright and McDaniel.24 On April 19, 2002, Levias filed another charge of discrimination with the EEOC, asserting that he had been retaliated against for his filing the first EEOC complaint when (1) Albright, in the fall of 2001, had given him "an impossible set of work circumstances, setting [him] up for failure and poor performance"; and (2) he was denied the Assistant Plant Manager position in...

To continue reading

Request your trial
5 cases
  • Washington v. Gulf States Toyota, Inc.
    • United States
    • U.S. District Court — Southern District of Texas
    • July 7, 2016
    ...is false, may permit the trier of fact to conclude that the employer unlawfully discriminated.'" Levias v. Texas Dep't of Criminal Justice, 352 F. Supp.2d 751, 769 (S.D. Tex. 2004) (quoting Reeves, 530 U.S. at 148). The Court finds that the evidence presented creates a sufficient dispute of......
  • Fuming Wu v. Texas A&M Univ. Sys., CIVIL ACTION NO. H-10-3690
    • United States
    • U.S. District Court — Southern District of Texas
    • December 8, 2011
    ...is false, may permit the trier of fact to conclude that the employer unlawfully discriminated.'" Levias v. Texas Dep't of Criminal Justice, 352 F. Supp.2d 751, 769 (S.D. Tex. 2004) (quoting Reeves, 530 U.S. at 148). "This is not to say that such a showing by the plaintiff will always be ade......
  • Del Toro v. Fed. Express Corp.
    • United States
    • U.S. District Court — Southern District of Texas
    • September 14, 2016
    ...is false, may permit the trier of fact to conclude that the employer unlawfully discriminated.'" Levias v. Texas Dep't of Criminal Justice, 352 F. Supp.2d 751, 769 (S.D. Tex. 2004) (quoting Reeves, 530 U.S. at 148). "This is not to say that such a showing by the plaintiff will always be ade......
  • Montgomery-Smith v. La. Dep't of Health & Hosps., CIVIL ACTION NO. 17-5564 SECTION: "E"(3)
    • United States
    • U.S. District Court — Eastern District of Louisiana
    • August 6, 2018
    ...Corp., 169 F.3d 962, 966 (5th Cir. 1999). 74. Byers, 209 F.3d at 425-26. 75. Id. 76. Reeves, 530 U.S. at 142. 77. Id. 78. 352 F. Supp. 2d 751, 768-69 (S.D. Tex. 2004). 79. Id. at 768. 80. Id. at 769 (citing Reeves, 530 U.S. at 143). 81. R. Doc. 54 at ¶ 59. Plaintiff at times submits Mr. Kha......
  • Request a trial to view additional results
1 books & journal articles
  • PRETEXT: FORMS AND FUNCTIONS IN EMPLOYMENT-DISCRIMINATION, BATSON, AND ADMINISTRATIVE-LAW CLAIMS.
    • United States
    • Case Western Reserve Law Review Vol. 72 No. 1, September 2021
    • September 22, 2021
    ...2015). (30.) See, e.g., St. Mary's Honor Ctr., 509 U.S. at 506, 508, 542 (1993). (31.) See, e.g., Levias v. Tex. Dep't of Crim. Just., 352 F. Supp. 2d 751, 76768 (S.D. Tex. (32.) See, e.g., Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000) ("This Court has not squarely add......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT