Welsh v. Fort Bend Indep. Sch. Dist.

• Decision Date: 30 October 2019
• Docket Number: No. 19-20239,19-20239
• Citation: 941 F.3d 818
• Parties: Guadalupe A. WELSH, Plaintiff - Appellant v. FORT BEND INDEPENDENT SCHOOL DISTRICT, Defendant - Appellee
• Court: U.S. Court of Appeals — Fifth Circuit

941 F.3d 818

Guadalupe A. WELSH, Plaintiff - Appellant

v.FORT BEND INDEPENDENT SCHOOL DISTRICT, Defendant - Appellee

No. 19-20239

United States Court of Appeals, Fifth Circuit.

FILED October 30, 2019

Jeremy D. Saenz, Attorney, Wagner & Saenz, L.L.P., Houston, TX, for Plaintiff-Appellant.

Jonathan Griffin Brush, Elizabeth Rae Mylin, Rogers, Morris & Grover, L.L.P., Houston, TX, Paul A. Lamp, Karczewski Bradshaw Spalding, Houston, TX, for Defendant-Appellee.

Before DAVIS, SMITH, and HIGGINSON, Circuit Judges.

STEPHEN A. HIGGINSON, Circuit Judge:

Appellant, Guadalupe A. Welsh ("Appellant" or "Ms. Welsh"), alleges that her employer, Appellee Fort Bend Independent School District ("Appellee" or "FBISD"), discriminated against her and retaliated against her when she complained of said discrimination. Welsh brought claims under Title VII and the Age Discrimination in Employment Act ("ADEA") for discrimination on the basis of her national origin, sex, and age. The district court granted summary judgment in favor of FBISD. We affirm.

I

On August 15, 2012, Welsh filed a complaint with the Equal Employment Opportunity Commission ("EEOC") alleging that FBISD discriminated against her on the basis of her national origin, sex, and age; subjected her to a hostile work environment; and retaliated against her. The EEOC issued a right-to-sue letter on June 30, 2014, signaling that Welsh had exhausted her administrative remedies. Welsh sued in state court on September 26, 2014. That suit was dismissed as time-barred on January 9, 2015.

One week after her state lawsuit was dismissed, Welsh filed a second complaint against FBISD with the EEOC. Welsh made the same allegations, but she supplemented her complaint with additional factual details that were "representative of the continuous retaliation" she alleged she suffered after filing her first EEOC complaint. The EEOC issued another right-to-sue letter on May 12, 2015, at which time Welsh brought the instant suit. The district court granted FBISD’s motion for summary judgment, holding that res judicata barred Welsh’s claims. Welsh appealed that decision to this court, and this court vacated the district court’s decision and remanded. On remand, the district court reached the merits of Welsh’s claims. The district court granted summary judgment in favor of FBISD because, among other reasons, Welsh could not prove that FBISD took any adverse employment action against her.

II

Welsh is a long-time teacher at FBISD. Welsh began working for FBISD in 1971 and has been employed by FBISD at all times relevant to this lawsuit. At the time the lawsuit was filed, Welsh was still an aquatic science teacher at Dulles High School.

This court has previously articulated the incidents that Welsh contends form the basis for her employment discrimination and retaliation claims as follows:

(1) On April 3, 2014, she was placed under a "Teacher in Need of Assistance" ("TINA") Plan for reasons that were fabricated;

(2) On April 29, 2014, she received a Professional Development and Appraisal System, Summative Annual Report ("PDAS"), which stated that she had been placed on a TINA Plan and FBISD "would not remove the disparaging memoranda";

(3) On July 9, 2014, Welsh requested a letter of recommendation from the principal but received no response;

(4) During "the Fall semester of 201[3],"¹ FBISD deliberately failed to provide her with accommodation information for her students as a means of fabricating another reprimand against her;

(5) On September 16, 2014, Welsh filed a grievance requesting that the TINA Plan be removed from her file, that all mentions of the grievance be removed from her file, and that the school comply with PDAS standards; and

(6) On December 19, 2014, Allison Pike "made humiliating remarks" to Welsh in front of others.

Welsh v. Fort Bend Ind. Sch. Dist. , 860 F.3d 762, 764 (5th Cir. 2017). We briefly explore the details underlying each of these incidents.

A

Welsh alleges that the discrimination against her began in the fall of 2013. One of Welsh’s students required special education services. However, Welsh claims that she did not receive a copy of the student’s individualized education plan ("IEP"), which describes the accommodations required by the student. As a result, Welsh alleges she did not know what accommodations the student required.² Because the student did not receive proper accommodations, the student’s academic performance suffered and the student’s parents complained. Upon receiving the complaint, Dr. Terra Smith, an associate principal at FBISD, began investigating the parents’ concerns. Dr. Smith explained to Welsh, in a detailed letter, her conclusion that Welsh was aware of the need for accommodations and failed to properly document the student’s special education needs. Dr. Smith’s letter also documented various other transgressions: (1) Welsh failed to respond to emails from a parent of an IEP student; (2) Welsh failed to timely respond to an oral request from a parent; (3) Welsh failed to respond to Dr. Smith explaining why she assigned a student to detention. After following up with two additional letters, and "[i]n accordance with District policy," Dr. Smith placed Welsh on a Teacher In Need of Assistance Plan ("TINA"). In the course of these discussions, Welsh also responded with rebuttal letters attempting to explain or deny the alleged transgressions.

The TINA required Welsh to attend an hour and forty minutes of training on the areas where she needed improvement, namely how to implement and document IEPs. Following this training program, Welsh’s accommodation logs were monitored by supervisors. Welsh completed the TINA successfully. The TINA ended on March 17, 2014, one month after it was implemented.

A reference to Welsh’s successful completion of the TINA was included in Welsh’s 2013-2014 annual review. The entry on her review read: "Mrs. Welsh was on a [TINA] from February 17, 2014 to March 17, 2014. The TINA was successfully completed by March 17, 2014." Welsh was unhappy with this notation and filed an administrative grievance with FBISD requesting that the reference to the TINA be removed. An assistant superintendent, Xochitl Rodriguez, reviewed and investigated Welsh’s grievance. Rodriguez denied Welsh’s request to remove reference to the TINA after concluding that there was evidence that supported the TINA.

B

On July 9, 2014, Welsh requested a recommendation letter from her campus principal, Mr. Edwards. Welsh admitted at deposition that she requested this recommendation letter during a conversation in a hallway. Soon after, Welsh emailed Edwards with a written request for a recommendation letter. Welsh never received a recommendation letter or a response to her request, but she concedes that she never followed up to remind Edwards about her request.³

C

Because Welsh is an aquatic science teacher, she is responsible for maintaining 14 to 15 tanks of fish in her classroom, caring for the fish, and feeding the fish. On December 19, 2014, as faculty departed for the end of the semester, an associate principal, Allison Pike, made a statement that Welsh contends humiliated her. Pike told Welsh, in front of other coworkers, "Ms. Welch [sic ], you need to take care of your fish." Welsh appears to have concluded that Pike was criticizing Welsh’s work ethic by implying that Welsh should not rely on FBISD’s maintenance staff to feed the fish during the winter break. Welsh hypothesizes that, because Pike is younger, Pike decided to "poke fun at her."

D

At the time she was deposed in April 2018, Welsh remained employed as a teacher at FBISD. Indeed, Welsh’s salary increased after the events described above. Although Welsh applied for various administrative positions in FBISD before 2013, she developed the "mind-set" that she was incapable of being promoted to these roles following the incidents described above. Therefore, Welsh stopped applying to these roles and has not applied to any of these roles since before 2013.

III

"This court reviews a district court’s grant of summary judgment de novo, applying the same legal standards as the district court." Tradewinds Envtl. Restoration, Inc. v. St. Tammany Park, LLC , 578 F.3d 255, 258 (5th Cir. 2009) (quoting Condrey v. SunTrust Bank Ga. , 429 F.3d 556, 562 (5th Cir. 2005) ). "Summary judgment is appropriate when ‘the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.’ " United States v. Nature’s Way Marine, L.L.C. , 904 F.3d 416, 419 (5th Cir. 2018) (quoting Fed. R. Civ. P. 56(a) ). The court reviews all evidence in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

IV

Welsh bases her discrimination claim on circumstantial rather than direct evidence. Therefore, Welsh must prove that she: (1) is a member of a protected group; (2) was qualified for the position at issue; (3) suffered some adverse employment action by the employer; and (4) was treated less favorably than other similarly situated employees outside the protected group. See McCoy v. City of Shreveport , 492 F.3d 551, 556 (5th Cir. 2007) ; Bienkowski v. Am. Airlines, Inc. , 851 F.2d 1503, 1504–05 (5th Cir. 1988). If Welsh carries this burden, the burden then shifts to FBISD to articulate a legitimate, non-discriminatory rationale for its actions. McCoy , 492 F.3d at 557. If FBISD meets this burden, the burden shifts back to Welsh to show that there is a genuine question of material fact precluding summary judgment on the basis of FBISD’s stated rationales. See id.

Here, FBISD has never contested that Welsh is a member of each of the protected classes she alleges (race, sex, national origin). FBISD also has never contested that Welsh is qualified for the position she holds. Welsh, therefore, satisfies the first two prongs of the test. FBISD argues that Welsh’s claim falters on the third...