Shiyan Jiang v. Tex. Comm'n on Envtl. Quality

• Decision Date: 13 August 2018
• Docket Number: 1:17-CV-739-RP
• Citation: 321 F.Supp.3d 738
• Parties: SHIYAN JIANG, Plaintiff, v. TEXAS COMMISSION ON ENVIRONMENTAL QUALITY and Kim Wilson, individually and in her capacity as Director of Water Availability, Defendants.
• Court: U.S. District Court — Western District of Texas

321 F.Supp.3d 738

SHIYAN JIANG, Plaintiff,

v.TEXAS COMMISSION ON ENVIRONMENTAL QUALITY and Kim Wilson, individually and in her capacity as Director of Water Availability, Defendants.

1:17-CV-739-RP

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

Signed August 13, 2018

Colin Walsh, Wiley Walsh, P.C., Austin, TX, Robert Joseph Wiley, Rob Wiley, P.C., Dallas, TX, for Plaintiff.

Michael Abrams, Office of the Attorney General of Texas, Austin, TX, for Defendants.

ORDER

ROBERT PITMAN, UNITED STATES DISTRICT JUDGE

Before the Court is a motion for summary judgment filed by Defendants Texas Commission on Environmental Quality ("TCEQ") and Kim Wilson ("Wilson"), individually and in her capacity as TCEQ's Director of Water Availability (together, "Defendants"). (Dkt. 16). Having considered the parties' arguments, the factual record, and the relevant law, the Court will deny Defendants' motion.

I. BACKGROUND

Plaintiff Shiyan Jiang ("Jiang") is a civil engineer who spent 23 years working for the Texas Commission on Environmental Quality ("TCEQ") as a hydrologist. (Jiang Decl., Dkt. 19-2, at 1-2). Jiang is 73 years old; he was born in China. (Id. at 1). In November 2014, Jiang filed an internal complaint that a supervisor had discriminated against him on the basis of his age and race. (Id. at 2). He alleges that he began to receive unjustified differential treatment after making that first complaint; he later filed a second internal complaint in August 2015. (Id. at 2-3).

In December 2015, Jiang's department director Kim Wilson ("Wilson") placed him on six-month disciplinary probation. (Id. at 3). According to Wilson, she placed Jiang on probation because he failed to follow policy directives from supervisors, reinitiated closed policy debates, and conducted himself unprofessionally. (Dec. 3 Memo, Dkt. 16-2, at 194-196). While on probation, Jiang participated in two progress meetings: one on February 11, 2016, and another on April 21, 2016. (Jiang Decl., Dkt. 19-2, at 3). At the April 21 meeting, he again complained that he was being discriminated against on the basis of his age and race. (Id. at 4). On April 22, Jiang's team leader Christine Peters ("Peters") drafted a recommendation to fire him. (Mot. Summ. J., Dkt. 16, at 11). Wilson agreed with Peters' recommendation and issued a notice of intent to discharge to Jiang on April 29. (Id. at 12). After unsuccessfully appealing the decision to terminate his employment, Jiang was fired in June 2016. (Id. ).

Jiang then filed this action against Defendants, alleging claims for: (1) discrimination on the basis of his race and national origin in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII") and the Texas Commission on Human Rights Act ("TCHRA"); (2) retaliation for engaging in protected activities under Title VII and the TCHRA; and (3) a violation of 42 U.S.C. § 1981 by denying him "equal rights and benefits." (Orig. Pet., Dkt. 1-4, at 12-14).¹ Defendants now ask the Court to grant summary judgment against Jiang on each of his claims. (Mot. Summ. J., Dkt. 16).

II. LEGAL STANDARD

Summary judgment is appropriate under Rule 56 of the Federal Rules of Civil Procedure only "if the movant shows there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A dispute is genuine only if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 254, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). "A fact issue is ‘material’ if its resolution could affect the outcome of the action." Poole v. City of Shreveport , 691 F.3d 624, 627 (5th Cir. 2012).

The party moving for summary judgment bears the initial burden of "informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). "[T]he moving party may [also] meet its burden by simply pointing to an absence of evidence to support the nonmoving party's case." Boudreaux v. Swift Transp. Co. , 402 F.3d 536, 544 (5th Cir. 2005). The burden then shifts to the nonmoving party to establish the existence of a genuine issue for trial. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp. , 475 U.S. 574, 585-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) ; Wise v. E.I. DuPont de Nemours & Co. , 58 F.3d 193, 195 (5th Cir. 1995). After the nonmovant has been given the opportunity to raise a genuine factual issue, if no reasonable juror could find for the nonmovant, summary judgment will be granted. Miss. River Basin Alliance v. Westphal , 230 F.3d 170, 175 (5th Cir. 2000). Courts must view the summary judgment evidence in the light most favorable to the nonmovant. Rosado v. Deters , 5 F.3d 119, 123 (5th Cir. 1993).

III. SUMMARY JUDGMENT EVIDENCE

Jiang began working for TCEQ in 1993. (Jiang Decl., Dkt. 19-2, at 1). According to Defendants, Jiang had a decade-long history of raising policy disagreements with management, such as disputing the correct criteria for evaluating stream-diversion applications. (Mot. Summ. J., Dkt. 16, at 4-6). Nonetheless, Jiang asserts without contradiction that he was not formally disciplined for any reason from 1993 until December 2015. (Jiang Decl., Dkt. 19-2, at 3). In fact, Jiang appears to have received satisfactory or better performance reviews until December 2015. (Id. ).

In October 2014, Jiang's supervisor confronted him about placing certain papers in permit application folders. (Complaint Form, Dkt. 16-1, at 183-89). Jiang thought the encounter reflected race- and age-related bias, and he filed a discrimination complaint within a week. (Id. ). The investigative report for that complaint was sent to the Action Review Committee ("ARC"), which included Human Resources Director Melissa Applegate ("Applegate") and Wilson. (Mot. Summ. J., Dkt. 16, at 7). The ARC met on June 29, 2015. (Id. ). Wilson became head of the Surface Water Availability Team ("SWAT") on July 1, 2015, making her part of the ARC that considered Jiang's complaint. (Id. ; see Resp. Mot. Summ. J., Dkt. 19, at 8). The ARC dismissed Jiang's complaint on July 1, 2015. (July 1 Memo, Dkt. 16-1, at 190).

After Wilson became the SWAT director, four employees-half of SWAT-filed discrimination complaints based on age or race. (See Wilson Dep., Dkt. 16-2, at 17; Nov. 6 Memo, Dkt. 16-2, at 191). Within a month of reporting those discrimination complaints to human resources, Wilson placed two of those employees, including Jiang, on disciplinary probation. (See Resp. Mot. Summ. J., Dkt. 19, at 9).² Jiang's six-month disciplinary probation began on December 3, 2015. (Dec. 3 Memo, Dkt. 16-2, at 194).

TCEQ listed a number of bases for Jiang's probation. First, Jiang had not complied with a directive not to place draft documents in permit application folders. (Id. ). Second, Jiang had taken too long to complete a project (the "Enterprise application"). (Id. ). Third, Jiang reinitiated debates about policy matters already considered and decided by management. (Id. ). Finally, Jiang raised his voice in meetings. (Id. ).

Jiang filed a memo disputing the bases for his probation, (Jiang Rebuttal Memo, Dkt. 19-2, at 6-9), and he now produces evidence suggesting that those bases are pretextual, (Resp. Mot. Summ. J., Dkt. 19, at 9-11). According to one coworker, other SWAT employees kept draft documents in permit application folders while they worked on the application, but only Jiang was reprimanded for it. (Mughal Interview Notes, Dkt. 19-3, at 78). Jiang argues that he completed the Enterprise application as directed, (Jiang Rebuttal Memo, Dkt. 19-2, at 7-8), and that his supervisor had no issues with his memo, (Alexander Dep., Dkt. 16-3, at 92). Finally, Jiang's coworkers say that others use raised voices, (Peters Dep., Doc. 16-2, at 242-43; Mughal Dep., Doc. 16-3, at 497-98), but Wilson admits that she has not formally reprimanded anyone else for doing so, (Wilson Corp. Dep., Dkt. 16-3, at 135).

Jiang had two progress meetings while he was on probation. According to TCEQ's agenda for the first meeting in February 2016, Defendants told Jiang he had not complied with all of the requirements for probation, such as not reinitiating policy debates with his supervisors. (Feb. 11 Meeting Agenda, Dkt. 16-2, at 210). His second progress meeting took place on April 21, 2016. (Apr. 21 Meeting Agenda, Dkt. 16-2, at 213). According to TCEQ's agenda for that meeting, Defendants again told Jiang that he failed to comply with all of the requirements, including the policy-debate requirement. (Id. at 213-14). During the April 21 meeting, Jiang complained about race and age discrimination. (Jiang Decl., Dkt. 19-2, at 4). The meeting agenda indicates that Jiang was told that he "needs to demonstrate improvement" and that TCEQ was "hopeful that [Jiang's] attention to this matter will cause immediate correction." (Apr. 21 Meeting Agenda, Dkt. 16-2, at 217). The agenda says that Jiang's "failure to address" the concerns raised in the meeting "would result in further disciplinary action, including discharge." (Id. ).

On the morning after Jiang's second progress meeting, Peters drafted a memo recommending that Jiang be fired. (Peters email, Dkt. 16-2, at 261; Peters Apr. 21 Memo, Dkt. 16-2, at 315). Peters admits that there were no incidents between the second meeting and her discharge recommendation. (Peters Dep., Dkt. 16-2, at 251). On April 28, Peters and another supervisor, Lori Hamilton, issued a formal recommendation to Wilson recommending Jiang's termination. (Hamilton and Peters Apr. 28 Memo, Dkt. 16-2, at 391).

In their recommendation, Peters and Hamilton cite Jiang's failure to comply with TCEQ's internal policy on professional conduct, OPP 12.01. (Id. ). Specifically, they found that Jiang "continue...