Messer v. Meno

• Decision Date: 11 December 1997
• Docket Number: No. 96-50605,96-50605
• Parties: 75 Fair Empl.Prac.Cas. (BNA) 838 Karen Hanson MESSER, Plaintiff-Appellant, v. Lionel R. MENO, in his former official capacity as the Texas Commissioner of Education; Mike Moses in his official capacity as the Texas Commissioner of Education; and the Texas Education Agency, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 130

130 F.3d 130

75 Fair Empl.Prac.Cas. (BNA) 838

Karen Hanson MESSER, Plaintiff-Appellant, v. Lionel R. MENO, in his former official capacity as the Texas Commissioner of Education; Mike Moses in his official capacity as the Texas Commissioner of Education; and the Texas Education Agency, Defendants-Appellees.

No. 96-50605.

United States Court of Appeals Fifth Circuit.

Dec. 11, 1997.

Joseph P. Webber, Austin, TX, for Plaintiff-Appellant.

James C. Todd, Assistant Attorney General, Austin, TX, for Defendants-Appellees.

Appeal from the United States District Court for the Western District of Texas.

Before REYNALDO G. GARZA, HIGGINBOTHAM and JONES, Circuit Judges.

EDITH H. JONES, Circuit Judge:

This case presents the question whether a white woman plaintiff was unconstitutionally discriminated against in salary and promotion opportunities in the Texas Education Agency, because throughout the relevant period the agency aspired to "balance" its workforce according to the gender and racial balance of the state. The Agency defends its affirmative action plans and denies that their implementation had anything to do with the plaintiff's individual career. We find genuine issues of material fact; TEA's favorable summary judgment is, for the most part, reversed and the case remanded.

BACKGROUND

Appellant Karen Messer was employed by the Texas Education Agency (the "TEA") from 1978 to 1996, when she resigned from her position as Senior Director of the Budget Management Division to accept a position with the Texas Employment Commission (presently the Texas Workforce Commission (the "TWC")). Messer alleges that she was denied two promotions and was undercompensated because of her race and gender and that she resigned her position at TEA after suffering retaliation because of her complaints.

Throughout Messer's employment at TEA, the agency implemented and enforced affirmative action plans ("AAPs") that embodied TEA's commitment to "diversity" in its workforce. The AAPs have been revised and re-adopted annually. Until 1995, they expressed the goal of achieving "a workforce balanced with a proportionate number of minorities and women in the population." In 1995, the slightly modified goal of TEA's AAP was to "achieve a workforce balanced with a proportionate number of minorities and women in the workforce." Over the years, TEA painstakingly created, maintained, and analyzed statistics concerning the ethnic and gender makeup of its employees and applicants for employment. Monthly reports--known as utilization reports--monitored the number and proportion of minorities and women in TEA's workforce. These reports were apparently distributed each time a job vacancy opened within TEA. Among other evidence of race-conscious employment policies, TEA's Recruitment and Hiring Guidelines instructed its employees, in part:

Managers should survey their staffing patterns, especially concerning race and sex, when vacancies occur. While persons must ultimately be employed on the basis of job-related criteria, the needs of the unit, which include balanced workforce considerations, should have significant influence on employment decisions.

Messer contends that supervisors based hiring and other employment decisions on race and gender rather than superior merit. She asserts that because, in comparison to the Texas population, women were overrepresented in TEA's workforce, she was discriminated against as a woman when, pursuant to the AAPs, TEA pursued its goal of reducing the number of women in its workforce. Similarly, Messer complains that because, in comparison to the state's population, minorities were underrepresented in some parts of TEA's workforce, she was discriminated against for the sake of TEA's goal of reducing the number of whites in its workforce. More broadly, Messer challenges TEA's AAPs as unconstitutionally discriminatory on the basis of race and sex.

Pursuant to the AAPs, the defendants allegedly discriminated against her in three distinct situations: (1) reclassifying (or as she asserts, "promoting") a black male to a newly created position of TEA "Coordinator" on or about January 1992; (2) selecting a white male over Messer for Coordinator of Internal Operations in January 1994; ¹ and (3) paying higher salaries to four senior directors (two black females and two Hispanic males) who held identical positions and performed work comparable to hers.

Messer filed her formal charge of discrimination with the Equal Employment Opportunity Commission on or about November 2, 1994. She then sued the appellees contending violations of 42 U.S.C. §§ 1981, 1983, and Title VII for alleged race and sex discrimination and asserted a state law breach of contract claim. The magistrate judge granted the defendants' motions for summary judgment and dismissed all of Messer's claims. See Messer v. Meno, 936 F.Supp. 1280, 1299 (W.D.Tex.1996). Messer argues on appeal that the court erred only in dismissing her Title VII claims.

STANDARD OF REVIEW

This court reviews the grant of summary judgment de novo, applying the same standards as the magistrate judge. See Duffy v. Leading Edge Products, Inc., 44 F.3d 308, 312 (5th Cir.1995). Summary judgment is appropriate, when, viewing the evidence in the light most favorable to the nonmoving party, the record reflects that no genuine issue of any material fact exists, and the moving party is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-24, 106 S.Ct. 2548, 2552-53 (1986); Fed.R.Civ.P. 56(c). Once the movant carries his burden, "the nonmovant must go beyond the pleadings and designate specific facts showing that there is a genuine issue for trial." Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994).

ANALYSIS

A. The Timeliness of Messer's Lost Promotion Claims

Administrative review is normally first required before judicial review of a discrimination complaint. See Gottlieb v. Tulane University, 809 F.2d 278, 284 n. 8 (5th Cir.1987). A Title VII plaintiff must file a charge of discrimination with the EEOC no more than three hundred days after learning of an adverse employment decision in a referral state. See Washington v. Patlis, 868 F.2d 172, 175 (5th Cir.1989). ²

The magistrate judge held Messer's first complaint involving the promotion of Jim Johnson, a black male, was time barred. See Messer v. Meno, 936 F.Supp. 1280, 1295 (W.D.Tex.1996). Johnson was named to a newly created "Coordinator" position in January, 1992, but Messer did not file an EEOC discrimination charge until November, 1994, more than 300 days after notice of the employment action of which she now complains. Messer argues her complaint for this employment action was not time-barred, however, because it was part of a continuing violation of Title VII.

The continuing violation theory relieves a plaintiff of establishing that all of the complained-of conduct occurred within the actionable period if the plaintiff can show a series of related acts, one or more of which The core idea [of the continuing violations theory,] however, is that [e]quitable considerations may very well require that the filing periods not begin to run until facts supportive of a Title VII charge or civil rights action are or should be apparent to a reasonably prudent person similarly situated. The focus is on what event, in fairness and logic, should have alerted the average lay person to act to protect his rights. At the same time, the mere perpetuation of the effects of time-barred discrimination does not constitute a violation of Title VII in the absence of independent actionable conduct occurring within the statutory period....

falls within the limitations period. See Berry v. Board of Supervisors of LSU, 715 F.2d 971, 979 (5th Cir.1983). As this court has explained:

Glass v. Petro-Tex Chem. Corp., 757 F.2d 1554, 1560-61 (5th Cir.1985) (quotations, citations, and footnote omitted). Thus, a plaintiff can avoid a limitations bar for an event that fails to fall within the statutory period where there is "[a] persisting and continuing system of discriminatory practices in promotion or transfer [that] produces effects that may not manifest themselves as individually discriminatory except in cumulation over a period of time" Id. at 1561. See also Rendon v. AT & T Technologies, 883 F.2d 388, 395-96 (5th Cir.1989); Hendrix v. City of Yazoo City, Miss., 911 F.2d 1102, 1103-04 (5th Cir.1990); Alldread v. City of Grenada, 988 F.2d 1425, 1430-32 (5th Cir.1993).

In the instant case, the magistrate judge found that Messer's claim, based on the 1992 selection of a black male over her, was time-barred because (1) the two refusals to promote of which Messer complained were discrete individual actions, not interrelated events constituting a continuing violation; and (2) Messer failed to mention racial discrimination in her 1994 EEOC complaint. See Messer, 936 F.Supp. 1280, 1295 (W.D.Tex.1996). The second reason is contrary to the record. Messer complained of racial discrimination and specifically mentioned Jim Johnson in supporting documentation submitted to the EEOC that expanded on her allegations of discrimination. Further, the allegations of discrimination in her EEOC complaints alluded to unspecified incidents of racial discrimination.

Whether the first reason, rejecting the continuity or relatedness of employment decisions regarding Messer, is correct is a closer question requiring further factual and legal development. The magistrate judge's offhand dismissal of Messer's assertion ignores her theory of the case, supported for summary judgment purposes with adequate evidence, that TEA systematically promoted employees based on racial and gender criteria found in the utilization reports. On the other hand, because Messer participated in this system for fourteen years before being denied the 1992 promotion, one wonders that she did not know enough to file a timely discrimination complaint....