Perez v. Region 20 Educ. Service Center

• Decision Date: 20 September 2002
• Docket Number: No. 01-50591.,01-50591.
• Citation: 307 F.3d 318
• Parties: Daniel M. PEREZ, Plaintiff-Appellant, v. REGION 20 EDUCATION SERVICE CENTER, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

307 F.3d 318 Daniel M. PEREZ, Plaintiff-Appellant,
v.
REGION 20 EDUCATION SERVICE CENTER, Defendant-Appellee. No. 01-50591. United States Court of Appeals, Fifth Circuit. September 20, 2002.

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Malinda Ann Gaul (argued), Gaul & Dumont, San Antonio, TX, for Plaintiff-Appellant.

George J. Stengel, Jr. (argued), San Antonio, TX, for Defendant-Appellee.

Julie Caruthers Parsley, Sol. Gen., Austin, TX, for State of Texas, Amicus Curiae.

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

Before KING, Chief Judge, and SMITH and PARKER, Circuit Judges.

KING, Chief Judge:

Plaintiff-Appellant Daniel M. Perez ("Perez") filed suit against Defendant-Appellee Region 20 Education Service Center ("Region 20") for alleged violations of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e-2 (2000), the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12112 (2000), and the Texas Whistleblower Act, TEX. GOV'T CODE ANN. § 554.002 (Vernon 1994 & Supp.2002). The district court granted summary judgment in favor of Region 20 and Perez appeals. We AFFIRM.

I. FACTUAL AND PROCEDURAL HISTORY

On October 22, 1990, Perez began working for Region 20 as a Data Processing Specialist. Region 20 is one of several Education Service Centers ("Centers") charged with administering statewide educational programs and supporting local school districts. In 1991, Perez was promoted to the position of Senior Analyst Specialist II in the Regional Service Center Computer Cooperative ("RSCCC") systems group.

Perez wished to become a Database Administrator for the RSCCC group. Unlike other computer groups at Region 20, the RSCCC group did not have a Database Administrator position. Perez began taking on some database administration duties. These duties were not part of Perez's job description, but employees at Region 20 often took on duties outside of their job descriptions. Perez submitted a request to Region 20 asking to be promoted to, or reclassified as, a Database Administrator because it was a higher-level position than Senior Analyst Specialist II. Perez's request was not granted because there was no Database Administrator position available in the RSCCC group, but Perez was told that if the position was ever approved and funded for his group, he would get the position.

In June 1998, Perez filed a complaint with the Equal Employment Opportunity Commission ("EEOC"), claiming that Region 20 discriminated against him on the basis of national origin in failing to promote or reclassify him.

In late 1997, Perez began experiencing stress and depression; by January 1998, though, Perez received a clean bill of health. In June 1998, Perez was treated for stomach problems and work-related stress. Perez then told Region 20 that he was having medical problems and submitted

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certification of anxiety, depressive disorder, dysthemia, and stress. Perez's therapist noted that his condition was not chronic or incapacitating but nonetheless recommended that Perez's work schedule be limited to 37.5 hours per week. Region 20 limited Perez's work schedule until April 1999, when Perez's doctor released him to work overtime under certain conditions.

Though Perez had previously received positive performance reviews, Perez's annual performance review in August 1998 contained several negative comments. In March 1999, Perez received a memo from a supervisor stating that his performance was substandard and warning of possible consequences. In June 1999, Perez received two further memos documenting problems with his work performance and hours. Perez was discharged on July 1, 1999.

Perez responded to his discharge by filing several complaints against Region 20. Region 20 does not have a formal procedure for an employee to appeal his termination, but it allowed Perez to file a grievance. The grievance committee ruled against Perez. Perez also filed a grievance with the Commissioner of Education; that grievance was ultimately dismissed due to lack of jurisdiction. In July 1999, Perez filed a second EEOC complaint, alleging that: (1) Region 20 discharged him due to his Hispanic national origin; (2) Region 20 discriminated against him because of his mental illness disability in violation of the ADA; and (3) Region 20 discharged him in retaliation for filing a previous EEOC complaint. The EEOC denied Perez's charges of discrimination and retaliation and informed Perez of his right to sue Region 20.

Perez filed suit in Texas state court, alleging that Region 20 violated Title VII, the ADA, and Texas state law. Specifically, Perez alleged: (1) Region 20 discriminated against him on account of his Hispanic national origin, in violation of Title VII, when it failed to grant his request to reclassify his position or promote him; (2) Region 20 discharged him in retaliation for filing his charge of discrimination with the EEOC in violation of Title VII; (3) Region 20 discharged him because of his Hispanic national origin in violation of Title VII; (4) Region 20 discriminated against him due to his mental illness disability in violation of the ADA; and (5) Region 20 discharged him in retaliation for reporting the sexual harassment of another Region 20 employee in violation of the Texas Whistleblower Act. Region 20 removed the lawsuit to federal district court.

The district court granted summary judgment for Region 20 on all claims. Perez appealed.

II. STANDARD OF REVIEW

This court reviews a grant of summary judgment de novo, applying the same standards as the district court. Daniels v. City of Arlington, 246 F.3d 500, 502 (5th Cir.), cert. denied, ___ U.S. ____, 122 S.Ct. 347, 151 L.Ed.2d 262 (2001). Summary judgment should be granted if there is no genuine issue of material fact for trial and the moving party is entitled to judgment as a matter of law. FED.R.CIV.P. 56(c). In determining if there is a genuine issue of material fact, the court reviews the evidence in the light most favorable to the non-moving party. Daniels, 246 F.3d at 502.

A genuine issue of material fact exists when there is evidence sufficient for a rational trier of fact to find for the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). When the non-moving party bears

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the burden of proof on a claim, the moving party may obtain summary judgment without providing evidence that negates the non-moving party's claim. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-25, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Rather, the moving party need only highlight the absence of evidence in support of the non-moving party's claim. See id.

III. DISCUSSION

Perez raises five issues on appeal. He argues that: (1) Region 20 failed to promote or reclassify him on the basis of his Hispanic national origin in violation of Title VII; (2) Region 20 discharged him in retaliation for making an EEOC complaint in violation of Title VII; (3) Region 20 discharged him on account of his Hispanic national origin in violation of Title VII; (4) Region 20 discriminated against him due to his mental illness disability in violation of the ADA; and (5) Region 20 discharged him in retaliation for reporting sexual harassment in violation of the Texas Whistleblower Act. We consider each claim in turn.

A. Title VII Failure to Promote Claim

Perez first contends that Region 20's failure to promote him to the position of Database Administrator violates Title VII's prohibition of discrimination in employment on the basis of national origin. See 42 U.S.C. § 2000e-2(a) (2000). To make out a prima facie case of discrimination based on failure to promote, Perez must show that: (1) he belongs to a protected class; (2) he was qualified for the job he sought; (3) despite his qualifications, Perez was rejected; and (4) after his rejection, the position remained open and Region 20 continued to seek applicants from persons of Perez's qualifications. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Bennett v. Total Minatome Corp., 138 F.3d 1053, 1060 (5th Cir.1998). If Perez establishes a prima facie case, the burden shifts to Region 20 to articulate a legitimate, non-discriminatory reason for Perez's rejection. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000); McDonnell Douglas Corp., 411 U.S. at 802, 93 S.Ct. 1817. If Region 20 articulates a non-discriminatory reason, Perez must then show that Region 20 did intentionally discriminate, which he may do by demonstrating that Region 20's proffered reason is simply a pretext for discrimination. See Reeves, 530 U.S. at 143, 146-48, 120 S.Ct. 2097.

The district court found that Perez had made out his prima facie case, but that Region 20 had articulated a legitimate, non-discriminatory reason for its failure to promote Perez. We bypass the serious question whether Perez even met his prima facie burden and address Region 20's articulated reasons for its failure to promote or reclassify Perez.

Region 20 argues, and presented summary judgment evidence to the effect that, it did not promote Perez or reclassify his position because the position of Database Administrator within the RSCCC group was never approved for funding and, therefore, the position did not exist. The district court found this to be a legitimate, non-discriminatory reason for the failure to promote Perez and found that Perez had failed to present sufficient evidence to suggest that Region 20's stated reason was false. Perez notes only that another software group at Region 20 did contain a Database Administrator position and that other employees (two Anglo males, one Hispanic woman, one African-American male, and one Asian-American woman) were reclassified. Neither fact, nor the argument...