Messer v. Meno, A-95-CA-165-SC.

• Court: United States District Courts. 5th Circuit. Western District of Texas
• Citation: 936 F. Supp. 1280
• Docket Number: No. A-95-CA-165-SC.,A-95-CA-165-SC.
• Parties: Karen Hansen MESSER, Plaintiff v. Lionel R. MENO, in his former capacity as the Texas Commissioner of Education, the Texas Education Agency, and Mike Moses as the Texas Commissioner of Education, Defendants.
• Decision Date: 08 July 1996

936 F. Supp. 1280

Karen Hansen MESSER, Plaintiff
v.
Lionel R. MENO, in his former capacity as the Texas Commissioner of Education, the Texas Education Agency, and Mike Moses as the Texas Commissioner of Education, Defendants.

No. A-95-CA-165-SC.

United States District Court, W.D. Texas, Austin Division.

July 8, 1996.

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Joseph Webber, Austin, Texas for plaintiff

James C. Todd, Assistant Attorney General, Austin, Texas for all defendants.

MEMORANDUM OPINION

CAPELLE, United States Magistrate Judge.

Before the Court are the following partially dispositive¹ motions, responses, and replies:

1. Defendants' First Motion for Partial Dismissal/Summary Judgment filed July 17, 1995 (Doc. # 17); Plaintiff's Response to Defendants' Motion and attached exhibits filed July 26, 1995 (Doc. # 20); Defendants' Reply in Support of Partial Summary Judgment filed August 23, 1996 (Doc. # 24);

2. Defendants' Second Motion, with Supporting Brief, for Partial Summary Judgment filed December 13, 1995 (Doc.

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# 33); Plaintiff's Response to Defendants' Second Motion for Summary Judgment filed December 21, 1995 (Doc. # 36); Defendants' Reply in Support of their Second Motion filed January 17, 1996 (Doc. # 39)

3. Defendants' Third Motion for Partial Summary Judgment filed May 10, 1996 (Doc. # 45);² Plaintiff's Response to Defendants' Third Motion for Summary Judgment filed March 8, 1996 (Doc. # 36); and Defendants' Reply filed March 13, 1996 (Doc. # 44).

4. The Court also has before it the letter written by counsel for Defendants on March 20, 1996 with respect to the applicability of the Hopwood case to the facts of the case at bar, Defendants' Supplemental Authority filed June 4, 1996 (Doc. # 47), Plaintiff's Supplemental Authority in Opposition submitted June 26, 1996,³ Defendants' Objections to Plaintiff's Supplemental Authority filed June 27, 1996 (Doc. # 50), and Plaintiff's Third Supplemental Affidavit filed June 27, 1996 (Doc. # 51), as well as the pleadings filed in this cause.

I. BACKGROUND

Plaintiff, Karen Hansen Messer, was employed at Defendant Texas Education Agency ("TEA") at the time this suit was filed in state court in January of 1995.⁴ Defendants removed this case to federal court on February 23, 1995 based on federal question jurisdiction.

Ms. Messer sues under 42 U.S.C. §§ 1981, 1983, and Title VII⁵ for alleged race and sex discrimination at the TEA.⁶ After removal, Plaintiff amended her Complaint to also asserts state law claims for breach of contract and claims for actual and punitive damages.⁷ Because of the posture of this case, the Court construes the facts, if supported by any evidence, in favor of Plaintiff Messer.

In 1991, Defendant Lionel Meno was appointed Commissioner of the TEA. Commissioner Meno left TEA in March of 1995 and is sued in his official capacity as the former TEA Commissioner.⁸ Plaintiff also sues the Texas Education Agency, an agency of the State of Texas. There are no individual defendants in this action.

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Plaintiff was employed at TEA from 1978 through 1996 and "rose through the ranks" to her final position as Senior Director of the Budget Management Division, a position she held for six (6) years. At the time of the events giving rise to this suit, senior directors were paid approximately $60,000. The title of "Senior Director" indicates a person who manages one of the larger or more complex TEA divisions.

While at the TEA, Commissioner Meno was apparently committed both to affirmative action and to compliance with then Governor Ann Richards' directive that the employees at Texas agencies should, as much as possible, reflect the population of Texas with respect to race, ethnicity, and gender. See, e.g., Plaintiff's Exhibits 43-49. From the evidence submitted by Plaintiff, it is clear that an extensive amount of work was done over the years to create, maintain, and analyze documentation concerning the ethnic and gender makeup of TEA employees and applicants for employment. See Exhibits to Plaintiff's Response to Defendants' First Motion for Summary Judgment, passim.

In furtherance of his commitment to affirmative action, Commissioner Meno hired four new senior directors (who were all minorities) at salaries higher than the salary then paid to Plaintiff as a senior director. Commissioner Meno apparently was proud that his senior directors, both the ones he hired and ones already at TEA, were (at least at one time) all minorities and/or women.

It is uncontested that three of these new directors accepted pay cuts to work at the TEA, while one received a minimal raise. The evidence indicates (and Plaintiff does not dispute) that, at least based on their records, all of the new senior directors were qualified for the position. Plaintiff's assertion is based on her claim that she, too, was entitled to the higher salary and would have received it if she was a minority. Allegedly, after Ms. Messer complained about the salary disparity, Commissioner Meno promised Ms. Messer that her salary would be raised to equal that of the other directors. Although Ms. Messer eventually received a raise, she apparently was still earning approximately $1,000 less annually than some of the other directors.

There is substantial evidence indicating that affirmative action was, at least in the past, a factor not only in recruitment but also in TEA hiring decisions. See e.g. Depositions of Susan Farias and Kristine Hopkins Mohajer Motlagh; see also Plaintiff's Exhibits 43-50, 65, 88, 140, 206. The TEA works under an annual "Affirmative Action Program" ("AAP") which stresses the importance of diversity. (Plaintiff's Exhibits 15-20). The 1993-94 AAP, and prior AAPs, had the stated goal of "achieving workforce diversity consistent with the population."⁹ See Plaintiff's Exhibit 20. The 1994-95 AAP alters this goal slightly by stating "the overall objective is to achieve a workforce balanced with a proportionate number of women and minorities in the workforce." See Plaintiff's Exhibit 21. The 1994-1995 AAP and prior AAPs also require that no person should be excluded on the basis of race, gender, age etc. However, under the AAPs, monthly reports are to be created to "monitor utilization." The AAPs also all include extensive gender and ethnic breakdowns of the TEA workforce, both of the entire workforce and by category of position. TEA also forwards "utilization reports" to hiring managers indicating staffing compositions and "deficiencies" in staffing. See Plaintiff's Exhibit 237 attached to Plaintiff's Third Supplemental Affidavit.

Purportedly because of the success of affirmative action at TEA, women comprise approximately sixty percent (60%) of TEA's work force. Plaintiff asserts that this overabundance of women results in discrimination against women because, to achieve parity of genders (as reflected in the population), hiring decisions may be made which disfavor women. Specifically, Plaintiff asserts that women have become an "over-utilized" gender at TEA and thus are less likely to be hired or promoted as compared to men as a result of the "swinging pendulum" of affirmative action.

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With respect to her race claim, Plaintiff alleges that, because there are more whites at TEA than the average of the Texas population, whites are an "over-utilized" race and also are less likely to be hired or promoted. Plaintiff posits that as a white woman, she is "dually disadvantaged" when compared to a minority man.

Plaintiff alleges that she received less pay than minorities as a result of her gender and race. Plaintiff asserts that in January of 1992 she was not considered for the position of Coordinator because she was a white female (a position filled by Jim Johnson, a black male). Plaintiff also alleges that in December of 1993 (or January of 1994) she was not promoted to the position of "Coordinator of Internal Operations" because she was female (a white male, Bill Monroe, was the successful candidate). Plaintiff additionally asserts that there was a "climate of fear" at TEA in which supervisors were required to make hiring decisions on the basis of race or gender in order to achieve parity staffing regardless of who was best qualified for the position. Plaintiff asserts that as of February of 1996 (more than a year after suit was filed), supervisors were still encouraged to make employment decisions based on the applicant's race and/or gender. See Third Supplemental Affidavit of Karen Hanson Messer filed June 27, 1996 (Doc. # 51).

With respect to retaliation, Plaintiff asserts that TEA employees who testified favorably to her were either terminated or were subjected to retaliation and persuaded to quit their employment at the TEA. Plaintiff alleges that her opinions were no longer solicited or respected. Plaintiff also states that the division over which she had supervisory responsibility was reduced by twenty percent (20%) without a concomitant reduction in division responsibilities.

II. THE MOTIONS, RESPONSES, AND REPLIES

A. The First Motion for Partial Dismissal or Partial Summary Judgment.¹⁰

1. Defendants' Motion.

Defendants first move for partial summary judgment on the issue of the facial constitutionality of TEA's Affirmative Action Program. Defendants assert that because the relevant portions of the AAP encourage the provision of equal opportunity only through the expansion of the applicant pool and not at the point of the hiring decision, they are race and gender neutral. The AAP indicates that no selection techniques (hiring or promotion decisions) should be used that discriminate on the basis of race, religion, national origin, sex, disability, age, or veteran status. Defendants assert that, as federal contractors, they are required under Executive Order 11246, dated September 24, 1965...