Case Information
IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS DALLAS DIVISION
CHERYL BUTLER, §
§
Plaintiff, §
§
v. § Civil Action No. 3:18-CV-00037-E
§
JENNIFER M. COLLINS, §
STEVEN C. CURRALL, §
JULIE FORRESTER ROGERS, §
HAROLD STANLEY, AND §
SOUTHERN METHODIST UNIVERSITY, §
§
Defendants. §
MEMORANDUM OPINION AND ORDER
Cheryl Bulter, filed suit in the 193 rd Judicial District Court of Dallas County, Texas against Defendants. Defendants removed this case to federal court in January of 2018, at which time this case was before Judge Lindsay. As amended, Plaintiff asserted thirty counts against Defendants based on (i) defamation; (ii) fraud; (iii) negligence; (iv) breach of contract; and (v) several allegations of unlawful employment practices.
The Court previously dismissed with prejudice eight of Plaintiff’s claims. (Doc. 47). On November 29, 2021, Defendants filed their motion for summary judgment, which sought dismissal of all of Plaintiff’s remaining claims (“ Defendants’ Motion ”). (Doc. 126). Despite requesting and receiving two extensions to file her response, Plaintiff failed to timely file a response to Defendant’s Motion. On April 11, 2022, the Court issued an Order which granted Defendants’ Motion. (Doc. 190). In the Order, the Court stated “[a]n opinion containing the grounds for the Court’s decision is forthcoming.” (Doc. 189). Hereunder, the Court explains its reasoning for granting Defendant’s Motion, thereby dismissing all of Plaintiff’s remaining counts:
I. B ACKGROUND
A. Plaintiff’s Negative Tenure Recommendation
Defendant Southern Methodist University (“ SMU ”) previously employed Plaintiff. This dispute arises from a 2016 decision to deny Plaintiff tenure as a law professor. In 2011, SMU hired Plaintiff to work as an assistant law professor. Plaintiff’s appointment letter informed that (i) her appointment was from August 2011 to May 2014 and (ii) “[i]f your contract is renewed you would normally be considered for a tenured appointment during the 2015-2016 academic term.” Plaintiff’s appointment letter further attached the law school’s bylaws (“ Bylaws ”) and tenure procedures and standards. Plaintiff taught at SMU from August 2011 to May 2014. In March 2014, SMU renewed Plaintiff’s employment; however, the committee that evaluated Plaintiff’s renewal concluded in its contract renewal report that “Professor Butler’s teaching has room for improvement.”
In fall of 2015, SMU began the process for determining tenure for Plaintiff. The Bylaws include the guidelines used to determine tenure (“ Guidelines ”). The Bylaws’ criteria for tenure state, inter alia :
A professor has two preeminent responsibilities: teaching and contributing to the growth and understanding of the law. These two responsibilities shall be given equal weight in the determination whether to award tenure or promotion to a member of the Faculty.
. . . .
Promotion to the rank of full professor will only be awarded to candidates who demonstrate both sustained high quality teaching and substantial and continuing contributions to the growth and understanding of the law.
(Doc. 128 at 138).
SMU empaneled a “First Tenure Committee,” who raised concerns that Plaintiff’s teaching was not meeting the “high quality” standard for tenure. When Plaintiff learned of the First Tenure Committee’s concerns about her teaching, Plaintiff accused the First Tenure Committee of violating her civil rights. Thereafter, the First Tenure Committee resigned, and the dean of the law school, Defendant Jennifer Collins, appointed a “Second Tenure Committee.”
As part of the tenure decision, SMU required Plaintiff to provide several documents— including a personal statement, syllabi, resume of qualifications, teaching evaluations, and other materials—by November 16, 2015 (“ Tenure Box ”). Plaintiff sought an extension of her tenure decision to the following academic year (the 2016-2017 school year), which SMU Provost Harold Stanley denied. Plaintiff failed to timely submit her Tenure Box. Two other professors who were submitting to the tenure process for the law school timely submitted their respective tenure boxes.
In January 2016, the Second Tenure Committee issued its tenure report for Plaintiff (“ Tenure Report ”). Regarding Plaintiff’s teaching, the Tenure Report stated:
This committee is in unanimous agreement that Cheryl’s student teaching evaluations are, on the whole, problematic and a cause for concern. As noted at the beginning of this report, we do not feel comfortable making a collective recommendation of tenure and promotion for Cheryl based on her teaching. We are in agreement that no colleague should be granted tenure and promotion under our standards unless her teaching is at least of “high quality.”
. . . .
[W]e believe that the problems with Cheryl’s teaching were perhaps understated in the [contract renewal] report.
. . . .
Since the renewal committee report Cheryl has taught Torts I twice (fall, 2014 & 15) and Torts II once (spring, 2015). These more recent evaluations . . . [reflect] no progress for Cheryl as a teacher. More objectively, they demonstrate a marked worsening in the quality of Cheryl’s teaching and course management.
. . . .
[S]tudents in [Plaintiff’s fall 2014 Torts I class] questioned her understanding of the material and her preparation for class. Several also complained that she repeatedly cancelled classes or terminated them early, a continuing refrain in most of Cheryl’s torts evaluations[.] . . . Cheryl’s evaluations for Torts II (spring, 2015) and Torts I (fall, 2015) were, on the whole, awful.
. . . .
[Students’] comments . . . opined that she was often unprepared for class and lacked knowledge of the subject matter.
. . . .
The following lengthy [student] comment . . . encapsulates the overwhelming majority of the evaluations:
I have never had a professor more distracted and unclear. Assignments change constantly, classes are cancelled with minimal notice and rescheduled with no concern for student’s other obligations. I have had to email for clarifications on assignments at least four times; I will receive one answer, then the whole class will be emailed with a different answer, and then what is discussed in class will be different than that. There’s no way to prepare ahead because assignments will change the MORNING of class. She says she wants us to be fact masters, but SHE DOESN’T KNOW THE FACTS of the cases. Class discussion on cases is an excruciating line-by-line rendition of the case. It’s not a creative or enlightening method of learning. Her mood swings are beyond unpredictable.
One day she is energetic and wants questions and engagement, some days she’s aloof and distracted, some days she wants questions, other days she acts like they should never even be asked. She is condescending; she is flippant. []
. . . .
Most unfortunately, many students accused Cheryl of appearing to be angry with them, of belittling and berating particular students and, generally, of acting unprofessionally toward the class.
(Doc. 128 at 60-65).
The Tenure Report further raised concerns about Plaintiff’s interactions with the Second Tenure Committee:
Cheryl is often untruthful in her dealings with her colleagues and the law school administration. By untruthful, we mean that she says things that she knows or should know are not true. She repeatedly mischaracterizes what colleagues have said, including what members of this committee have told her. She often states facts in contradiction to what she said earlier in the same conversation. . . . . She has made accusations against colleagues, including our Dean and our Provost, that are demonstrably not true.
(Doc. 128 at 74).
The Second Tenure Committee ultimately concluded in its Tenure Report that “[t]he committee agrees that Cheryl’s teaching falls short of [tenure] standards. On January 13, 2016, the faculty voted on whether Plaintiff would receive tenure; the Guidelines on voting provide:
When a Faculty member is to be considered for tenure or promotion, the Dean shall call a special meeting for that purpose.
. . . .
In the case of tenure consideration, only tenured members may vote.
. . . .
A quorum for a meeting on tenure or promotion shall consist of 75% of the group eligible to vote and the candidate shall be recommended for tenure or promotion only on the favorable vote of 60% of those eligible to vote.
. . . .
If promotion or tenure is not approved, the candidate shall be advised of the results of voting.
(Doc. 128 at 137).
After the faculty voted by secret ballot, Plaintiff received a negative tenure recommendation. Collins did not vote on Plaintiff’s tenure recommendation. The faculty voted to recommend tenure for the other two professors who were submitting to the tenure process—one of whom is black.
B. Appeal of Negative Tenure Recommendation and Provost Recommendation Thereafter, Butler appealed the negative tenure recommendation to Collins. Collins informed Plaintiff she would consider the appeal on materials previously provided unless Plaintiff provided additional materials by April 25, 2016. Plaintiff provided no additional materials, and Collins denied Plaintiff’s negative tenure recommendation appeal on May 4, 2016. Collins presented the negative tenure recommendation to the provost of SMU, Defendant Steven Currall, by letter on May 4, 2016 (“ Collins Letter ”). The Collins Letter stated to Currall the following, inter alia :
Unfortunately, I concur in my colleagues’ assessment that Professor Butler has not demonstrated high quality in teaching.
. . . .
[T]he problems identified in the student evaluations were confirmed by extensive peer observations and other indicia of unsatisfactory teaching, including problems with syllabi, assignments, exams, and grading. . . . Professor Butler’s student evaluations are in a different category than the rest of the faculty.
. . . .
I looked at the reports for all the tenured and tenure track professors. The two first questions go to the core of the teaching role in many ways: question 1 is “Professor demonstrated a command of the material” and question 2 is “Professor was prepared for class.” Professor Butler’s scores in Torts II were the lowest in the school at a 3.73 for question 1 and 3.48 for question 2; no other professor received a score in the 3’s on those two questions.
. . . .
[Question 19] asks students to compare the professors to other professors at the school []. Professor Butler again received the lowest score in the school at 2.98 and was the only professor to receive a score in the 2’s on this question.
. . . .
Some pervasive complaints in the student evaluations were a lack of preparation, disorganization, excessive reviews of previously covered material and, most worrisome, a lack of knowledge of tort law that manifested itself in repeated misstatements of law and confusing contradictions in class. These problems manifested themselves in the two classes I observed.
. . . .
[The second-observed] class was absolutely awful, both substantively and pedagogically. Inexplicably, she did not cover any new material, but instead spent the entire class session reviewing material addressed in earlier classes. This review did not involve any effort to synthesize the earlier material or provide students with an overarching conceptual framework, but instead consisted of unnecessarily detailed recitation of the facts of cases previously discussed. She did not give students an opportunity to ask any questions or use any method to assess the students’ understanding of the material. She repeatedly referred to the importance courts place on “policy” arguments but without any discussion of what policy she might be talking about[.]
. . . .
Perhaps my biggest regret about Professor Butler is that she is unwilling or unable to accept constructive feedback about her teaching and make positive changes in response. She hears only what she wants to hear.
(Doc. 128 at 162-65).
The Collins Letter further described examples of Plaintiff’s unpreparedness, including (i) her failure to begin preparing an exam “until the actual day the exam was to be given”; (ii) multiple choice questions that failed to ask a question or randomly switched the names of the parties; and (iii) failing to provide “written feedback and professorial editing [in her edited writing class] that are at the very heart of the edited writing requirement (a graduation requirements [sic] for our students).”
On May 5, 2016, Currall informed Plaintiff (i) that he could not make a positive recommendation of tenure and (ii) that Plaintiff had three weeks to appeal the negative decision to the SMU President. Plaintiff did not appeal to the SMU president. SMU paid Plaintiff for the spring 2016, fall 2016, and spring 2017 semesters.
C. Plaintiff’s FMLA Leave
In summer 2015, Plaintiff sought information on Family Medical Leave Act (“ FMLA ”) leave from SMU. On June 12, 2015, SMU benefits specialist Rhonda Ice Adams emailed Plaintiff with instructions and “with all forms necessary to seek FMLA leave.” (Doc. 128 at 177, 191-92). This email further stated “Please note all documentation relative to FMLA should be sent to me and not provided to the Law School due to HIPPA regulations.” (Doc. 128 at 191-92). On November 24, 2015, Adams again provided Plaintiff with the FMLA forms and instructions for submission.
On December 18, 2015, Plaintiff submitted FMLA forms and accompanying documentation to Adams. On December 23, 2015, Adams approved Plaintiff’s FMLA leave from November 18, 2015, to December 21, 2015. Adams further approved Plaintiff’s FMLA leave from (i) January 6, 2016, to February 17, 2016 and (ii) February 18, 2016, to April 11, 2016. In accordance with SMU policies, no persons outside of Human Resources at SMU (“ HR ”) were authorized to make determinations on Plaintiff’s FMLA leave. Only Adams made the FMLA determinations that affected Plaintiff. Adams did not share any of Plaintiff’s medical information “with any employees beyond those who made FMLA determinations in HR.” (Doc. 128 at 176). Adams did not share any of Plaintiff’s medical information with Defendants Collins, Currall, and Stanley. Plaintiff received her full entitlement of FMLA leave for 2016.
D. Plaintiff’s ADA Requests and Reasonable Accommodations In the November 24, 2015 email to Plaintiff, Adams (i) attached “documentation needed if [Plaintiff sought] an accommodation due to impairment” and (ii) instructed Plaintiff to submit the accommodation documentation to SMU’s ADA/504 Coordinator Carolyn Hernandez. SMU maintained its Americans with Disabilities Act (“ ADA ”) policy and reasonable request forms (“ ADA Forms ”) on its website. Nevertheless, Hernandez further provided the ADA policy and forms to Plaintiff on December 14, 2015. On April 6, 2016, Plaintiff—for the first time—submitted her ADA reasonable accommodation request. Hernandez approved several ADA reasonable accommodations for Plaintiff including sitting during lectures; using medicines and devices; leave from classroom teaching; and not requiring Plaintiff to teach or be in the classroom during the Spring 2016 semester after exhaustion of FMLA leave. Neither Collins, Currall, Rogers, nor Stanley had any role in handling any ADA reasonable accommodations on behalf of SMU or Plaintiff. Neither Collins, Currall, Rogers, nor Stanley made any ADA determinations on behalf of Plaintiff.
E. SMU’s Investigations on Plaintiff’s Alleged Discrimination and Retaliation Plaintiff did not file a formal complaint of discrimination related to denial of her tenure.
Nevertheless, Plaintiff emailed Hernandez during spring 2016 complaining of discrimination and retaliation in connection with the denial of tenure. Hernandez completed an investigation, which included interviews with Collins, the First Tenure Committee, and the Second Tenure Committee. Hernandez spent months trying to obtain Plaintiff’s cooperation in the investigation—including frequent calls, messages, offers to interview by Skype—but Plaintiff refused to participate in the investigation.
Plaintiff raised complaints of discrimination about how Adams handled the FMLA leave requests. SMU’s chief human resources officer, Sheri Starkey, conducted a review and investigation related to Plaintiff’s FMLA leave. On April 20, 2016, Starkey determined that SMU “appropriately administered [Plaintiff’s] FMLA claim and that there is no discrimination.” (Doc. 128 at 278). Nevertheless, Plaintiff asserted SMU violated the ADA and FMLA, which Hernandez further investigated.
On December 22, 2016, Hernandez submitted her investigation conclusions to Plaintiff (“ Hernandez Letter ”). The Hernandez Letter states, inter alia :
After fully investigating your allegations, [SMU’s Office of Institutional Access and Equity] has discovered no evidence of discrimination and retaliation in the tenure decision. Our investigation shows that such comments were never made. Throughout the process, you were apprised of the sole basis for the tenure decision, which was that your teaching did not meet the University’s standards for tenure and promotion. You appealed the initial tenure recommendation from the law faculty to Dean Collins who reviewed your appeal and again informed you (on May 4, 2016) of the basis for the denial of the appeal and for her recommendation to the Provost that you not be granted tenure. The basis was your failure to meet the University’s teaching standards. Your race was not a factor.
. . . .
Our investigation shows that once you sought leave, SMU granted you FMLA leave in 2015 and the maximum amount of FMLA leave allowable in the 2016 calendar year. When your FMLA leave ran out, SMU granted you reasonable accommodations under the ADA. You were out of the classroom (and did not teach) for the entire spring 2016 semester on leave or as an accommodation. Thus, after fully looking at all the facts available to us, we have concluded that there was no violation of SMU’s policies against discrimination and retaliation.
(Doc. 128 at 321-22).
F. Procedural History
Since removal to federal court, the case has survived (i) the dismissal of multiple counts and defendants, (ii) a case reassignment to Judge Brown, (iii) Plaintiff’s show cause hearing, (iv) Plaintiff’s termination of six of her attorneys, and (v) Plaintiff’s suggestion of bankruptcy leading to the administrative closure of the case. In early February 2021, Defendants filed an unopposed motion to reopen the case (Doc. 108), which the Court granted on February 23, 2021. (Doc. 110). After an order extending the deadline for dispositive motions (Doc. 117), Defendants timely filed their motion for summary judgment on November 29, 2021, (“ Defendants’ Motion ”). (Doc. 126). Defendants’ Motion sought dismissal of all of Plaintiff’s twenty-two remaining counts, categorized as follows:
1. Title IX Claim (Count 30)
2. Breach of Contract Claim (Count 9)
3. Family Medical Leave Act Claims [“ FMLA ”] (Counts 23-26) 4. Claims Under the Americans with Disabilities Act [“ ADA ”]/Rehabilitation Act [“ RA ”] (Counts 16-22)
5. Claims Under 42 U.S.C. § 1981 (Counts 10-12)
6. Discrimination Claims Under Title VII (Counts 13 and 14) and Texas Commission on Human Rights Act [“ TCHRA ”] (Counts 27 and 29) 7. Retaliation Claims under § 1981 (Count 12), Title VII (Count 15), the ADA (Count 22), and TCHRA (Count 28).
(Docs. 126, 127).
Defendants’ Motion asserts Plaintiff has no evidence of an essential element on several of her counts. Furthermore, Defendants submitted summary judgment evidence to support their position that the decision to deny Plaintiff tenure was not unlawful regarding Plaintiff’s remaining counts. ( See Doc. 128, App. in Support of Defendants’ Motion for Summary Judgment). Defendants’ summary judgment evidence includes (i) deposition excerpts of Roy Anderson (a member of the Second Tenure Committee), Currall, and Samantha Thomas (a former director of SMU’s Office of Institutional Access and Equity) and (ii) declarations from Collins, Adams, and Hernandez. Defendants further attached corresponding exhibits to each of these preceding documents in their summary judgment evidence submissions.
Plaintiff failed to timely respond to or otherwise oppose Defendants’ Motion. [1] Plaintiff asserts no objections to Defendant’s summary judgment evidence. Thus, Plaintiff (i) failed to provide competent summary judgment evidence to support her claims and (ii) failed to preserve any objections to Defendants’ summary judgment evidence. As previously noted, the result of Plaintiff’s failures is that the Court treats Defendants’ facts as undisputed. (Doc. 187, at 4-5); (Doc. 166, at 8).
II. L EGAL S TANDARD
A. Summary Judgment
Summary judgment is appropriate when the pleadings and evidence on file show “there is
no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter
of law.” Fed. R. Civ. P. 56(a);
see also Anderson v. Liberty Lobby, Inc.
,
The moving party bears the initial burden of showing the court there is no genuine issue
for trial.
Celotex Corp. v. Catrett
,
Once the movant has made this showing, the burden shifts to the nonmovant to establish
there is a genuine issue of material fact so that a reasonable jury might return a verdict in its favor.
Celotex
, 477 U.S. at at 324, 106 S.Ct. 2548. “[C]onclusory allegations, speculation, and
unsubstantiated assertions” will not satisfy the nonmovant’s burden.
Douglass v. United Servs.
Auto. Ass’n
,
B. Effect Of Failing to Respond to Summary Judgment
“A party opposing such a summary judgment motion may not rest upon mere allegations
contained in the pleadings, but must set forth and support by summary judgment evidence specific
facts showing the existence of a genuine issue for trial.”
Ragas v. Tennessee Gas Pipeline Co.
, 136
F.3d 455, 458 (5th Cir. 1998) (citing
Anderson
,
The party opposing summary judgment is required to identify specific evidence in the record and to articulate the precise manner in which that evidence supports his or her claim. . . . “Rule 56 does not impose upon the district court a duty to sift through the record in search of evidence to support a party’s opposition to summary judgment.” Skotak v. Tenneco Resins, Inc. ,953 F.2d 909 , 915–16 & n. 7 (5th Cir.), cert. denied ,506 U.S. 832 ,113 S.Ct. 98 ,121 L.Ed.2d 59 (1992).
Ragas
,
Nevertheless, “[t]he failure to submit evidence in response to a summary judgment motion
does not permit a court to enter a ‘default’ summary judgment.”
Potasznik v. McGee
, 3:16-CV-
155-L,
[i]f a party fails ... to properly address another party’s assertion of fact as required by Rule 56(c), the court may . . . (2) consider the fact undisputed for purposes of the motion [and] (3) grant summary judgment if the motion and supporting materials—including the facts considered undisputed—show that the movant is entitled to it[.]
Fed. R. Civ. P. 56(e)(2)-(3). In other words, “[a] court is allowed . . . to accept the movant’s facts
as undisputed when there is no competent evidence to refute or oppose the summary judgment.”
Potasznik
,
[T]he district court accepted as undisputed the facts so listed in support of MBank’s motion for summary judgment. In our opinion, the district court acted properly in doing so and, since Eversley made no opposition to the motion, the court did not err in granting the motion as MBank’s submittals made a prima facie showing of its entitlement to judgment .
Eversley
,
III. A NALYSIS
Defendants’ Motion and attached summary judgment evidence demonstrates that
Defendants are entitled to summary judgment on all of Plaintiff’s remaining claims as Defendants
(i) have submitted evidence that negates the existence of an essential element of each of Plaintiff’s
claims or (ii) have otherwise asserted no evidence supports an essential element of Plaintiff’s
claims—and the Court has found none.
Celotex
,
A. Breach of Contract Claim (Count 9)
Under Texas law, the elements of a breach of contract claim are: (1) a valid contract exists;
(2) the plaintiff performed or tendered performance as contractually required; (3) the defendant breached the contract by failing to perform or tender performance as contractually required; and
(4) the plaintiff sustained damages due to the breach. Pathfinder Oil & Gas, Inc. v. Great W. Drilling, Ltd. , 574 S.W.3d 882, 890 (Tex. 2019). As pleaded, Plaintiff asserts her breach of contract claim solely against SMU. Defendants assert summary judgment is appropriate because there is no evidence of breach. (Doc. 127, at 32). Despite Plaintiff’s failure to respond to Defendants’ Motion, Plaintiff’s pleadings assert SMU breached the employment contract by (i) failing to follow its Bylaws regarding academic due process; (ii) violating its Bylaws by engaging in fraud by denying that the faculty accused Plaintiff of wrongdoing and used those accusations to deny tenure; (iii) allowing and encouraging law faculty to violate state bar ethical rules; (iv) failing to follow its procedures with respect to academic tenure; (v) allowing its dean and supervisor to place medical information in her employment file and or to use her application for ADA or FMLA leave, and her complaints about alleged ADA or FMLA discrimination as grounds to deny or in any way consider her application for tenure and promotion; (vi) applying its tenure standards in a discriminatory manner based on race; (vii) failing to provide clear, consistent and nondiscriminatory guidelines on how to meet SMU’s tenure standards; (viii) refusing to uphold its own Policy regarding nondiscrimination, affirmative action and equal employment; (ix) failing or refusing to address Plaintiff’s reports of discrimination; (x) targeting and “singl[ing] out” Plaintiff “because she spoke up for herself by asserting her civil rights under the University Code”; (xi) failing to provide Plaintiff with a copy of the Tenure Report or other documents in her “tenure dossier”; (xii) “intentional and or reckless disregard for the core values of the AALS”; (xiii) failing to comply with various AALS bylaws, articles, and values; (xiv) violating various AAUP statement on principles, bylaws, and values; and (xv) violating several ABA accreditation standards. (Doc. 12 at 108-11).
After review of the record, the Court has found no evidence that would raise a genuine issue of material fact as to any of Plaintiff’s alleged breach of contract assertions. To the contrary, the record of Plaintiff’s contract with SMU and corresponding Bylaws and Guidelines contain either (i) no such agreement(s) or (ii) terms that rebut Plaintiff’s allegations of breach. Furthermore, the remaining record shows Defendants did not breach any agreement with Plaintiff. For example, the record shows the process for Plaintiff’s tenure decision comported with Plaintiff’s contract, Bylaws, and Guidelines as (i) the Second Tenure committee worked with Plaintiff regarding tenure; (ii) the Second Tenure Committee prepared a Tenure Report on Plaintiff; (iii) Collins convened a tenure meeting vote; (iv) Plaintiff’s potential tenure was evaluated under the standards in the Bylaws and Guidelines; (v) a quorum of the law school faculty members voted on Plaintiff’s tenure by secret ballot; and (vi) after Plaintiff appealed the negative tenure decision, Defendants followed the corresponding tenure appeal processes. Furthermore, the record further shows none of Plaintiff’s medical information was included as a basis to deny tenure. The record is devoid of evidence of Defendants (i) allowing or encouraging law faculty to violate state bar ethical rules; (ii) using medical information or other FMLA or ADA documents to deny Plaintiff’s tenure; or (iii) discriminating against Plaintiff based on her race, sex, gender, or other protected status. Indeed, no evidence in the record shows Defendants violated any of Plaintiff’s civil rights regarding her breach of contract claim.
Plaintiff directs us to no evidence in support of her breach of contract claim. Assuming
arguendo that evidence of a breach of contract exists, the Court declines to sift through the record
to find such evidence and has no obligation thereof.
See Ragas
,
The Court has found no evidence in the record of the third element of Plaintiff’s breach of
contract claim. Breach is an essential element of Plaintiff’s breach of contract claim.
Pathfinder
Oil
,
B. 42 U.S.C. § 1981, Title VII, and the TCHRA Claims of Hostile Work Environment,
Discrimination, and Retaliation Claims (Counts 10–15 and 27-28)
Plaintiff asserts, in parallel, several counts of hostile work environment, discrimination,
and retaliation under (i) 42 U.S.C. § 1981; (ii) Title VII; and (iii) Texas Labor Code Chapter 21
(referred herein as the Texas Commission on Human Rights Act or “
TCHRA
”).
[3]
42 U.S.C. § 1981
provides for equal rights under the law.
See
42 U.S.C. § 1981. Plaintiff’s counts 10 to 12 are based
on 42 U.S.C. § 1981. “[T]he purpose of Title VII is to protect employees from their employers’
unlawful actions.”
Simmons v. UBS Fin. Servs., Inc.
, 972 F.3d 664, 667 (5th Cir. 2020), cert.
denied,
“When used as parallel causes of action, Title VII and section 1981 require the same proof
to establish liability. . . . Similarly, the law governing claims under the TCHRA and Title VII is
identical.”
Shackelford v. Deloitte & Touche, LLP
,
i. Hostile Work Environment Claims (Counts 10 and 13).
To establish a claim of hostile work a plaintiff must prove she: (1) belongs to a protected group; (2) was subjected to unwelcome harassment; (3) the harassment complained of was based on his membership in the protected group; (4) the harassment complained of affected a term, condition, or privilege of employment; and (5) the employer knew or should have known of the harassment in question and failed to take prompt remedial action.
Johnson v. PRIDE Indus., Inc.
,
”Whether an environment is hostile or abusive depends on a totality of circumstances,
focusing on factors such as the frequency of the conduct, the severity of the conduct, the degree to
which the conduct is physically threatening or humiliating, and the degree to which the conduct
unreasonably interferes with an employee’s work performance.”
Weller v. Citation Oil & Gas
Corp.
,
Defendants assert that Plaintiff has not created a genuine issue of material fact as to her
hostile work environment claims “because there is no evidence of harassment based on race or
otherwise.” (Doc. 127 at 51). Plaintiff has presented no evidence in support of her hostile work
environment claims. Plaintiff’s pleading repeatedly asserts various types of harassment, but
“pleadings are not evidence of the facts alleged therein.”
Pullman Co. v. Bullard
,
The Court must conclude Plaintiff has failed to carry her summary judgment burden, and the Court must grant summary judgment in favor of Defendants. See, e.g. , Davis v. Realpage, Inc. , 3:18-CV-0986-D, 2020 WL 1325201, at *19 (N.D. Tex. Mar. 20, 2020) (Granting summary judgment to the employer after noting the plaintiff’s evidence was “woefully insufficient for a reasonable jury to find that Davis was subjected to a hostile work environment.”). Therefore, the Court GRANTS Defendants’ Motion as to Plaintiff’s hostile work environment claims. The Court dismisses Plaintiff’s hostile work environment claims based on 42 U.S.C. § 1981 and Title VII (Counts 10 and 13).
ii. Race Discrimination (Counts 11, 14, and 27)
As pleaded, Plaintiff’s theory of race discrimination is based on Defendants’ failure to
promote her to a tenured professor. “It is unlawful to terminate an employee ‘because of her race.’”
Owens v. Circassia Pharms., Inc.
,
Under that framework, [a complainant] must make out a prima facie case of discrimination. Watkins v. Tregre , 997 F.3d 275, 281 (5th Cir. 2021). If she succeeds, [an employer] must respond with a “legitimate, nondiscriminatory reason” for terminating [the complainant]. Id. at 282. Then the burden shifts back to [the complainant], who must counter with substantial evidence that [the employer’s] proffered reason is pretextual. Id.
Owens
,
(1) he was not promoted, (2) he was qualified for the position he sought, (3) he fell within a protected class at the time of the failure to promote, and (4) the defendant either gave the promotion to someone outside of that protected class or otherwise failed to promote the plaintiff because of his race.
Autry v. Fort Bend Indep. Sch. Dist.
,
Defendants assert no genuine issue of material fact exists as to Plaintiff’s race discrimination claims because (i) Plaintiff cannot show she was qualified for the position of a tenured Associate Professor and (ii) there is no evidence that she was denied the promotion based on race. (Doc. 127, at 52, 54). Plaintiff has presented no evidence in support of her race discrimination claims. After review of the record, the Court has found no evidence that would raise a genuine issue of material fact as to any of Plaintiff’s allegations of race discrimination related to her denial of tenure and promotion.
To the contrary, as discussed hereinabove, the record shows Plaintiff was denied tenure
and promotion because her teaching fell short of the “high quality” tenure standard—and not
because of her race. The record is otherwise devoid of any evidence of the second or fourth
essential elements of Plaintiff’s race discrimination, denial of tenure and promotion claims.
[7]
That
is, Plaintiff has failed to support—by summary judgment evidence—specific facts showing the
existence of a genuine issue as to (i) whether she was qualified for a tenured position and (ii)
whether the defendant either gave the promotion to someone outside of her protected class or
otherwise failed to promote the plaintiff because of her race.
See Ragas
,
The Court must conclude Plaintiff has failed to carry her summary judgment burden, and Plaintiff has failed to make out a prima facie case of discrimination. Thus, the Court must grant summary judgment in favor of Defendants. See Esquivel v. McCarthy , 3:15-CV-1326-L, 2016 WL 6093327, at *8 (N.D. Tex. Oct. 18, 2016). [8] Therefore, the Court GRANTS Defendants’ Motion as to Plaintiff’s race discrimination claims. The Court dismisses Plaintiff’s race discrimination- failure to promote claims based on (i) 42 U.S.C. § 1981; (ii) Title VII; and (iii) the TCHRA (Counts 11, 14, and 27).
iii. Retaliation (Counts 12, 15, and 28).
As pleaded, Plaintiff’s theory of retaliation is based on the adverse employment actions of
(i) the denial of tenure and (ii) a failure to investigate her claims of hostile work environment and
discrimination. As with her claim(s) of race discrimination, Plaintiff has presented no direct
evidence of retaliation. Thus, the Court must “apply the
McDonnell Douglas
burden-shifting
framework in determining whether [Plaintiff] has established a prima facie case of retaliation.”
Richards v. Lufkin Indus.
, L.L.C.,
To establish a prima facie case of retaliation, a Plaintiff must show the following: 1) she engaged in a protected activity; 2) she suffered an adverse employment action; and 3) there is a causal connection between the two.
Owens
,
“A ‘causal link’ is established when the evidence demonstrates that ‘the employer’s
decision to terminate was based in part on knowledge of the employee’s protected activity.’”
Medina v. Ramsey Steel Co.
,
Here, Defendants assert that Plaintiff (i) cannot meet the causation element of her retaliation claims and (ii) cannot demonstrate that SMU’s legitimate, nonretaliatory reasons for denying her tenure are a pretext for retaliation.” (Doc. 127, at 56). Plaintiff has presented no evidence in support of her retaliation claims.
First, it is unclear from the record and pleadings precisely
which
protected activity Plaintiff
asserts prompted the alleged retaliation and
when
the protected activity began to occur. Plaintiff’s
pleadings make general references to engaging in protected activity—including by “complaining
to the Human Resources Department and her superiors” or “complain[ing] too much about
discrimination.” (Doc. 12 at 132). But, such vague statements in her complaint, without any
reference to an unlawful employment practice does not constitute protected activity.
See Paske v.
Fitzgerald
,
Second, the record shows no evidence of a causal connection between any protected
activity—assuming arguendo Plaintiff engaged in protected activity—and adverse employment
actions. Regarding SMU’s adverse employment action of Plaintiff’s negative tenure
recommendation, the record shows SMU followed the Bylaws and Guidelines for the tenure
process. Furthermore, the record is (i) devoid of evidence that the faculty discussed or otherwise
relied upon Plaintiff’s complaints of discrimination in making Plaintiff’s negative tenure
recommendation; (ii) devoid of evidence that Plaintiff received discriminatory treatment in
comparison to similarly situated employees; and (iii) devoid of any other evidence that suggests
Plaintiff’s negative tenure recommendation was motivated by Plaintiff’s engagement in any
protected activity. Indeed, the record shows that the faculty was the decisionmaker for Plaintiff’s
denial of tenure, and no evidence in the record suggests the faculty considered or otherwise knew
of Plaintiff’s protected activities.
See Medina
,
Regarding SMU’s alleged adverse employment action of an alleged failure to investigate
Plaintiff’s claims of hostile work environment and discrimination, the record contains no evidence
of such failure. Instead, the record shows Defendants made efforts to address Plaintiff’s claims of
hostile work environment and discrimination: Defendants conducted investigations as enumerated
above, held meetings regarding Plaintiff’s concerns, and made changes to her courses—
accommodating her specific requests. Notwithstanding, the record contains no evidence that such
a failure to investigate Plaintiff’s claims of hostile work environment and discrimination
constituted an adverse employment action because no evidence in the record suggests that such an
investigation would constitute an “ultimate employment decision[].”
Thompson
,
After review of the record, the Court has found no evidence that would raise a genuine
issue of material fact as to any of Plaintiff’s allegations of retaliation based on (i) 42 U.S.C. §
1981; (ii) Title VII; and (iii) the TCHRA. That is, Plaintiff has failed to support—by summary
judgment evidence—specific facts showing the existence of a genuine issue of material fact on the
element of whether a causal connection existed between her protected activity and an adverse
employment action.
See Ragas
,
The Court must conclude Plaintiff has failed to carry her summary judgment burden, and Plaintiff has failed to make out a prima facie case of retaliation. Thus, the Court must grant summary judgment in favor of Defendants. Therefore, the Court GRANTS Defendants’ Motion as to Plaintiff’s retaliation claims. The Court dismisses Plaintiff’s retaliation claims based on (i) 42 U.S.C. § 1981; (ii) Title VII; and (iii) the TCHRA (Counts 12, 15, and 28).
C. RA, ADA, and TCHRA Claims of Hostile Work Environment, Discrimination,
Segregation, And Retaliation (Counts 16–22)
“Both of these statutes prohibit employment discrimination against qualified individuals
with disabilities . . . . The [RA] and the ADA are judged under the same legal standards, and the
same remedies are available under both Acts.”
See Kemp v. Holder
,
i. Plaintiff’s claims for “segregation in the workplace” (Count 18) and “invasion of medical privacy” (Count 20) under the RA or ADA are not cognizable.
The Court has located no language from the RA, ADA, or precedential case law that recognizes a cause of action for “segregation in the workplace” (Count 18) or “invasion of medical privacy” (Count 20) under the RA or ADA. Correspondingly, Defendants assert they are entitled to summary judgment on these causes of action because the Fifth Circuit has not recognized such claims based on the RA or ADA as actionable. Without support in the RA, ADA, or other precedent, the Court declines to recognize Plaintiff’s “segregation in the workplace” and “invasion of medical privacy” claims as pleaded under the RA and ADA. [11] Assuming arguendo such claims were recognized, Plaintiff failed to provide summary judgment evidence to support such claims. As such, the record contains no evidence in support of such claims.
Thus, the Court must grant summary judgment in favor of Defendants. The Court GRANTS Defendants’ Motion as to Plaintiff’s “segregation in the workplace” and “invasion of medical privacy” claims based on the RA and ADA. The Court dismisses Plaintiff’s corresponding claims (Counts 18 and 20).
ii. Plaintiff’s claim for “associational discrimination” (Count 19) is not an “explicitly” recognized cause of action under RA or ADA.
The Court has located no language from the RA, ADA or precedential case law that
recognizes a cause of action for “associational discrimination” (Count 19). In unpublished
opinions, the Fifth Circuit has not “explicitly recognized a cause of action for discrimination based
on association with a handicapped individual, nor [has it] described what such a claim requires.”
Spencer v. FEI, Inc.
,
“[i]f such an action were viable, a prima facie case of associational discrimination would require that the Plaintiff show: 1) her qualification for the job, 2) an adverse employment action, 3) the employer’s knowledge of the employee’s disabled relative, and 4) that the adverse employment action occurred under circumstances raising a reasonable inference that the relativee’s disability was a determining factor in the employer’s adverse action.”
Spencer
,
Without support in the RA, ADA, or other precedent, the Court declines to recognize
Plaintiff’s “associational discrimination” claim as pleaded under the RA and ADA. Assuming
arguendo such a claim was recognized, Plaintiff failed to provide summary judgment evidence to
raise a genuine issue of material fact. Under the test proposed in
Spencer
for “associational
discrimination,” no evidence in the record raises a fact issue for elements one, three, and four.
See
Spencer
,
This opinion should not be construed as recognizing a cause of action for associational discrimination under RA or ADA. Instead, this opinion is noting that, if such a cause of action were recognized in the Fifth Circuit, Plaintiff would have failed her summary judgment burden. Since the Fifth Circuit has not recognized such a claim for associational discrimination, the Court must grant summary judgment in favor of Defendants. Therefore, the Court GRANTS Defendants’ Motion as to Plaintiff’s “associational discrimination” claim based on the RA and ADA. The Court dismisses Plaintiff’s corresponding claim (Count 19).
iii. No Evidence In The Record Exists To Support Essential Elements Of Plaintiff’s Remaining RA, ADA, and TCHRA Claims: Disability-Based Harassment (Count 16); Disability Discrimination (Count 17); Failure-to-Accommodate (Count 21); and Retaliation (Count 22)
1) Disability-Based Harassment (Count 16) To establish a hostile-work environment, disability-based harassment claim under the ADA, Plaintiff must demonstrate:
1) that she belongs to a protected group; 2) that she was subjected to unwelcome harassment; 3) that the harassment complained of was based on her disability or disabilities; 4) that the harassment complained of affected a term, condition, or privilege of employment; and 5) that the employer knew or should have known of the harassment and failed to take prompt, remedial action.
Credeur v. Louisiana
,
Defendants assert Plaintiff has neither (i) evidence of harassment nor (ii) evidence of harassment pervasive or severe enough to alter the conditions of her employment. Plaintiff has presented no evidence in support of her hostile work environment claims. No evidence in the record shows Plaintiff was subjected to unwelcome harassment based on a disability. After review of the record, the Court has found no evidence that would raise a genuine issue of material fact as to any of Plaintiff’s allegations of hostile work environment as based on the RA or ADA. The record is devoid of any evidence of the third through fifth essential elements of Plaintiff’s hostile work environment claims.
The Court must conclude Plaintiff has failed to carry her summary judgment burden, and
the Court must grant summary judgment in favor of Defendants.
See, e.g.
,
Gowesky v. Singing
River Hosp. Sys.
,
2) Disability Discrimination (Counts 17 and 29)
As pleaded, Plaintiff’s theory of disability discrimination under both the ADA and TCHRA
is based on Defendants’ failure to promote her to a tenured professor. The ADA prohibits
employment discrimination against a qualified individual based on the individual’s disability. 42
U.S.C. § 12112(a);
E.E.O.C. v. LHC Grp., Inc.
,
As discussed hereinabove, Plaintiff has presented no direct evidence of discrimination;
thus, Plaintiff must satisfy the
McDonnell Douglas
burden-shifting framework.
Caldwell v.
KHOU-TV
,
It is undisputed that Plaintiff had a disability and suffered an adverse employment action— Plaintiff’s negative tenure recommendation. Defendants assert there is no evidence in the record to support Plaintiff’s second essential element of disability discrimination—whether Plaintiff was qualified for tenure. (Doc. 127, at 47).
Plaintiff has presented no evidence in support of her disability discrimination claims. After review of the record, the Court has found no evidence that would raise a genuine issue of material fact as to any of Plaintiff’s allegations of disability discrimination related to her denial of tenure and promotion. To the contrary, as discussed hereinabove, the record shows Plaintiff was denied tenure and promotion because her teaching fell short of the “high quality” tenure standard—that is, Plaintiff did not qualify for tenure.
The record is otherwise devoid of any evidence of the second essential element of Plaintiff’s disability discrimination, denial of tenure and promotion claim. That is, Plaintiff has failed to support by summary judgment evidence specific facts showing the existence of a genuine issue on the element of whether she was qualified for a tenure position. See Ragas , 136 F.3d at 458; Autry , 704 F.3d at 346–47. Defendants do not challenge the third element of Plaintiff’s disability discrimination claim—whether the “adverse employment decision on account of recommendation. Thus, the Court takes Plaintiff’s negative tenure recommendation as the complained-of adverse employment action in her TCHRA disability discrimination claim.
[Plaintiff’s] disability .” Thompson , 2 F.4th 460 (emphasis added). Nevertheless, the record contains no evidence that Plaintiff’s negative tenure recommendation occurred on account of her disability. Thus, Plaintiff has failed to raise a genuine issue of material fact as to both the second and third elements of her disability discrimination claims.
The Court must conclude Plaintiff has failed to carry her summary judgment burden, and Plaintiff has failed to make out a prima facie case of discrimination. Thus, the Court must grant summary judgment in favor of Defendants. Therefore, the Court GRANTS Defendants’ Motion as to Plaintiff’s disability discrimination—denial of tenure and failure to promote claims based on the ADA and TCHRA. The Court dismisses Plaintiff’s disability discrimination claims (Counts 17 and 29).
3) Failure-to-Accommodate (Count 21)
“Under the ADA, it is unlawful for an employer to fail to accommodate the known
limitations of an employee’s disability.”
Credeur
,
“‘Essential functions’ are those duties that are fundamental to the job at issue.”
Kapche v.
City of San Antonio
,
[A] job function may be considered essential if, for example, (1) the purpose of the position is the performance of that function, (2) only a limited number of employees are available among whom the performance of that function can be delegated, or (3) an employee is hired because of his expertise or ability to perform a specialized function. To aid in the determination of whether a function is essential, a court may consider as evidence a variety of factors including, but not limited to, (1) the employer’s judgment as to which functions are essential, (2) written job descriptions prepared before advertising or interviewing applicants for the job, (3) the amount of time spent on the job performing the function, and (4) the work experience of both past and current employees in the job.
Kapche , 176 F.3d at 843 (footnotes omitted). Essential functions do “not include the marginal functions of the position.” 29 C.F.R. § 1630.2(n)(1).
“The ADA requires employers to make ‘[m]odifications or adjustments to the work environment, or to the manner or circumstances under which the position held or desired is customarily performed, that enable a qualified individual with a disability to perform the essential functions of that position[.]’” E.E.O.C. v. LHC , 773 F.3d at 698 (quoting 29 C.F.R. § 1630.2(o)(1)(ii)). Under the ADA, the term “reasonable accommodation” may include: job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.
42 U.S.C.A. § 12111(9)(B). “‘The ADA provides a right to reasonable accommodation, not to the
employee’s preferred accommodation.’”
Jennings v. Towers Watson
,
Plaintiff has presented no evidence in support of her failure to accommodate disability
claims. After review of the record, the Court has found no evidence that would raise a genuine
issue of material fact as to the first element of Plaintiff’s allegations of Defendants’ failure to
accommodate Plaintiff’s disabilities under the ADA. To the contrary, the record shows that
Plaintiff’s achieving tenure was not an “essential function” in light of the
Kapche
factors, as (i) no
evidence shows achieving tenure was “fundamental” or “essential” to Plaintiff’s position as a
teacher at SMU’s school of law and (ii) the record of agreements between Plaintiff and SMU show
that achieving tenure was based on several conditions for promotion and a faculty vote.
See
Kapche
,
Plaintiff has failed to support by summary judgment evidence specific facts showing the
existence of a genuine issue on whether she was a qualified individual—(i) whether achieving
tenure was an “essential function” of her job; or (ii) whether her acclaimed “reasonable
accommodation” of delaying the vote on her tenure would have enabled her to perform an essential
function of her job. The Court must conclude Plaintiff has failed to carry her summary judgment
burden, and the Court must grant summary judgment in favor of Defendants.
See, e.g.
,
Credeur
,
4) Retaliation (Count 22)
Like her claims of retaliation under (i) 42 U.S.C. § 1981; (ii) Title VII; and (iii) the
TCHRA, Plaintiff’s theory of retaliation under the ADA is based on the adverse employment
actions of the denial of tenure and a failure to investigate her claims of ADA discrimination. The
ADA prohibits retaliation against those who exercise their ADA rights.
See Lyons
, 964 F.3d at
304. Plaintiff has presented no direct evidence of ADA retaliation; therefore, Plaintiff must satisfy
the
McDonnell Douglas
burden-shifting framework.
Lyons
,
To establish a prima facie case of unlawful retaliation under the ADA, the plaintiff must show that: (1) she engaged in an activity protected by the ADA, (2) she suffered an adverse employment action, and (3) there is a causal connection between the protected activity and the adverse action.
Lyons
, 964 F.3d at 304. Notwithstanding that the protected activity must fall under activity
protected by the ADA, the second and third elements of an ADA retaliation follow the same
analysis as a retaliation claim asserted under Title VII.
Garner v. Chevron Phillips Chem. Co.,
L.P.
,
Here, Defendants assert Plaintiff cannot meet the causation standard because Plaintiff’s engagement with activity protected by the ADA—requesting reasonable accommodations— occurred after Plaintiff’s negative tenure recommendation. Plaintiff has presented no evidence in support of her retaliation claims.
Again, as with her retaliation claims under on (i) 42 U.S.C. § 1981; (ii) Title VII; and
(iii) the TCHRA, it is unclear from the record and pleadings precisely
which
protected activity
Plaintiff asserts prompted the alleged retaliation and
when
the protected activity began to occur.
Plaintiff’s pleadings make general references to engaging in protected activity—including by
requesting accommodation under the ADA.
Tabatchnik v. Cont’l Airlines
,
As discussed above, the only adverse employment action Plaintiff suffered is her negative
tenure recommendation, which occurred on January 13, 2016. Thus, the Court must conclude no
temporal proximity existed between Plaintiff’s April 6, 2016 engagement in protected activity and
the January 13, 2016 adverse employment action, as the protected activity occurred
after
the
adverse employment action. Otherwise, the record shows no evidence of a causal connection
between any protected activity and Plaintiff’s negative tenure recommendation. Indeed, the record
is devoid of any other evidence that shows Plaintiff’s negative tenure recommendation was
motivated by Plaintiff’s engagement in any activity protected by the ADA. Instead, the record
shows that the faculty was the decisionmaker for Plaintiff’s denial of tenure, and no evidence in
the record suggests the faculty considered or otherwise knew of Plaintiff’s protected activity under
the ADA.
See Medina
,
After review of the record, the Court has found no evidence that would raise a genuine
issue of material fact as to any of Plaintiff’s allegations of ADA retaliation. That is, Plaintiff has
failed to support—by summary judgment evidence—specific facts showing the existence of a
genuine issue of material fact on the element of whether a causal connection existed between her
protected activity under the ADA and an adverse employment action.
See Ragas
,
The Court must conclude Plaintiff has failed to carry her summary judgment burden, and Plaintiff has failed to make out a prima facie case of ADA retaliation. Thus, the Court must grant summary judgment in favor of Defendants. Therefore, the Court GRANTS Defendants’ Motion as to Plaintiff’s ADA retaliation claim. The Court dismisses Plaintiff’s retaliation claims based on the ADA (Count 22).
D. FMLA Claims (Counts 23-26).
“The FMLA grants ‘an eligible employee’ up to twelve weeks of annual unpaid leave for
‘a serious health condition’ that prevents him from performing the functions of his job.”
Tatum v.
Southern Co. Servs.
,
i. Plaintiff’s claims for harassment (Count 24) and invasion of privacy (Count 25) and are not cognizable under FMLA.
The Court has located no language from the FMLA or precedential case law that recognizes
a cause of action for “harassment” (Count 24)
[16]
or “invasion of medical privacy” (Count 25) under
the FMLA. Correspondingly, Defendants assert they are entitled to summary judgment on these
causes of action because neither the Fifth Circuit nor other district courts within the Fifth Circuit
have recognized such claims based on the FMLA as actionable.
See Smith-Schrenk v. Genon
Energy Servs., L.L.C.
, No. H-13-2902,
Without support in the FMLA or other precedent, the Court declines to recognize Plaintiff’s “harassment” and “invasion of medical privacy” claims as pleaded under the FMLA. Assuming arguendo such claims were recognized, the record contains no evidence in support of those claims, and Plaintiff failed to provide summary judgment evidence to support them. [17] Thus, the Court must grant summary judgment in favor of Defendants. Therefore, the Court GRANTS Defendants’ Motion as to Plaintiff’s “harassment” and “invasion of medical privacy” claims based on the FMLA. The Court dismisses Plaintiff’s corresponding claims (Counts 24 and 25).
ii. No Evidence in the Record Exists to Support Plaintiff’s Claims of FMLA Interference (Counts 23 and 26) or FMLA Retaliation (Count 24).
1) FMLA Interference with FMLA Leave (Count 23)
“A prima facie case of FMLA interference requires an employee to show that: 1) he was
an eligible employee; 2) his employer was subject to FMLA requirements; 3) he was entitled to
leave; 4) he gave proper notice of his intention to take FMLA leave; and 5) his employer denied
the benefits to which he was entitled under the FMLA.”
Campos
,
Whether SMU denied Plaintiff’s benefits entitled under the FMLA, is an essential element
of Plaintiff’s FMLA interference with leave claim.
Campos
,
Thus, the record shows—and Plaintiff does not dispute—that SMU granted the FMLA leave she was entitled to. After review of the record, the Court has found no evidence that would raise a genuine issue of material fact as to any of Plaintiff’s allegations of Defendants’ interference with her FMLA leave. Notwithstanding, there is no evidence in the record that shows SMU denied Plaintiff’s benefits entitled under the FMLA—the fifth essential element to Plaintiff’s FMLA interference with FMLA leave claim.
The Court must conclude Plaintiff has failed to carry her summary judgment burden, and
the Court must grant summary judgment in favor of Defendants.
See Hunt v. Rapides Healthcare
Sys. LLC
,
2) FMLA Retaliation Claim (Count 24)
“The FMLA prohibits retaliation against those who exercise their FMLA rights.”
Campos
,
As discussed hereabove, the only adverse employment action Plaintiff suffered was not being promoted through the tenure process—Plaintiff’s negative tenure recommendation. Defendants assert they are entitled to summary judgment on Plaintiff’s FMLA retaliation claim because no evidence in the record shows a causal connection (i) between Plaintiff’s FMLA leave or seeking protection under the FMLA and (ii) the decision to not promote Plaintiff through the tenure process. Plaintiff has presented no evidence in support of her claim. The Court has found no evidence in the record in support of this claim.
The record contains no evidence that Plaintiff’s negative tenure recommendation involved
the consideration of any FMLA request or protection under the FMLA. To the contrary, the record
shows Plaintiff was denied tenure and promotion because her teaching fell short of the “high
quality” tenure standard—Plaintiff did not qualify for tenure. The record is otherwise devoid of
any evidence of the third essential element of Plaintiff’s FMLA retaliation claim. That is, Plaintiff
has failed to support by summary judgment evidence specific facts showing the existence of a
genuine issue on the element of whether “she was treated less favorably than an employee who
had not requested
leave under the FMLA
or the adverse decision was made
because she sought
protection under the FMLA
.”
Campos
,
Furthermore, the undisputed facts show Defendants—through the First and Second Tenure
Committees—contemplated that Plaintiff may have not qualified for tenure before Plaintiff
requested FMLA leave. Defendants are not required to change course simply because Plaintiff
asked for and received all the FMLA leave she was entitled to take.
See Mauder
,
The Court must conclude Plaintiff has failed to carry her summary judgment burden, and
Plaintiff has failed to make out a prima facie case of FMLA retaliation. Thus, the Court must grant
summary judgment in favor of Defendants.
See Mauder
,
3) FMLA Interference with Job Restoration (Count 26)
“The FMLA provides, in part, that an employee ‘shall be entitled, on return from [a
qualified] leave—(A) to be restored by the employer to the position of employment held by the
employee when the leave commenced; or (B) to be restored to an equivalent position with
equivalent employment benefits, pay, and other terms and conditions of employment.’”
Nero v.
Indus. Molding Corp.
,
Accordingly, an employee claiming a violation of his right to reinstatement must actually be entitled to the position to which he seeks reinstatement. . . . Thus, although denying an employee the reinstatement to which he is entitled generally violates the FMLA, denying reinstatement to an employee whose right to restored employment had already been extinguished—for legitimate reasons unrelated to his efforts to secure FMLA leave—does not violate the [FMLA].
Hester
,
Defendants have sought summary judgment on this claim. In her pleading, Plaintiff
complains that she was not reinstated to teaching in the classroom and that she did not receive
reimbursement for “standard work expenses related to research.” Here, the record is devoid of
evidence in support of Plaintiff’s FMLA interference with job restoration claim. To the contrary,
the record shows (i) Plaintiff did not teach during the spring 2016 semester—during her second
period of her FMLA leave; (ii) SMU paid Butler during this period; and (iii) SMU paid Plaintiff
for her terminal year—the Fall 2016 to Spring 2017 school year. The record shows that, during
this final school year, Plaintiff was free to work on her research and other scholarship of her
choosing. Plaintiff presented no evidence in support of her FMLA interference with job restoration
claim. Thus, there is no evidence in the record that she was entitled to reinstatement specifically
to a teaching position with SMU or receipt of expenses of any kind as a condition of her work.
Otherwise, the record is devoid of evidence that Plaintiff, during the fall 2016 to spring 2017 school
year, did
not
receive “equivalent employment benefits, pay, [or] other terms and conditions of
employment.”
Nero
,
The Court must conclude Plaintiff has failed to carry her summary judgment burden, and
Plaintiff has failed to make out a prima facie case of FMLA interference with job restoration. Thus,
the Court must grant summary judgment in favor of Defendants.
See Mauder
,
E. Burden Shifting, Pretext, and Causation
The court acknowledges that Plaintiff failed to provide summary judgment evidence to
support—or otherwise raise a genuine issue of material fact on—any of her discrimination or
retaliation claims. As discussed above, Plaintiff has failed to make out a prima facie case for
discrimination and retaliation as required and the burden does not shift to the Defendants.
See, e.g.
,
Haynes v. Pennzoil Co.
, 207 F.3d 296, 301 (5th Cir. 2000) (ending its analysis and affirming
district court’s grant of summary judgment after concluding plaintiff “failed to establish a prima
facie case of racial discrimination under Title VII”);
Owens
33 F.4th at 835 (applying the
McDonnell Douglas
framework to a retaliation claim under Title VII and 42 U.S.C. § 1981).
Nevertheless—assuming arguendo that Plaintiff met her burden to show a prima facie case—it is
undisputed that Defendants presented a “legitimate, non-discriminatory reason” for denying
Plaintiff’s negative tenure recommendation.
Owens
,
Thus, the burden shifts back to Plaintiff to show Defendants’ reason for the negative tenure
recommendation was pretextual. Under the third step of the
McDonnell Douglas
framework, the
burden would shift back to Plaintiff to present evidence proving the reasons stated by the employer
were not its true reasons, but were a pretext for discrimination, or the reasons were not credible.
Reeves
,
i. Pretext Under McDonnell Douglas
To establish pretext under the third step of
McDonnell Douglas
, a complainant “may
attempt to establish that he was the victim of intentional discrimination ‘by showing that the
employer’s proffered explanation is unworthy of credence.’”
Reeves
,
Here, Plaintiff has failed to present any evidence showing Defendants’ reasons for denying
her tenure were pretextual or unworthy of credence.
See, e.g.
,
Hassen v. Ruston La Hosp. Co.,
LLC
,
Plaintiff has failed to direct the Court to evidence that Defendants’ acts relating to an adverse employment action were pretextual or unworthy of credence, and the Court has found no such evidence in the record. Thus, no substantial evidence exists in the record to support Plaintiff’s claims of discrimination. Furthermore, Plaintiff has failed to direct the Court to evidence that the adverse employment action—Plaintiff’s negative tenure recommendation—would not have occurred but for Plaintiff’s engagement in protected activity, and the Court has found none in the record. Thus, the record is devoid of any evidence that would support Plaintiff’s burden under the third step of the McDonnell Douglas framework. Considering Plaintiff’s discrimination and retaliation claims, the Court must conclude SMU’s reason for Plaintiff’s negative tenure recommendation were neither pretextual nor otherwise unworthy of credence.
ii. FMLA Retaliation and Causation (“But For” and Mixed-Motive Causation Standards)
Should a plaintiff make out a prima facie claim for FMLA retaliation, the analysis proceeds
to burden-shifting.
See Campos
,
In discussing the mixed-motive framework, the Fifth Circuit has explained: To survive a motion for summary judgment under that framework, the employee must first set forth a prima facie case of FMLA retaliation. Id . at 390. The burden then shifts to the employer to articulate a legitimate, nondiscriminatory reason for the adverse employment action. Id . If the employer does so, “the burden shifts once more to the employee to offer sufficient evidence to create a genuine issue of fact that the employer’s reason, although true, is but one of the reasons for its conduct, another of which was discrimination.” Id .
Castay
,
As discussed above, Plaintiff failed to assert a prima facie case of FMLA retaliation.
Assuming
arguendo
that Plaintiff met her prima facie burden on her FMLA retaliation claim,
Plaintiff nevertheless fails to meet either (i) the “but for” causation standard under the
McDonnell
Douglas
framework or (ii) the “mixed-motive” causation standard.
[19]
Again, no evidence in the
record shows that the adverse employment action—Plaintiff’s negative tenure recommendation—
would not have occurred “but for” Plaintiff’s engagement in protected activity under the FMLA.
The record shows Plaintiff received a negative tenure recommendation because she failed to meet
SMU’s “high quality” standard for teaching. There is no evidence of the record of another motive
for Plaintiff’s negative tenure recommendation. That is, there is no substantial evidence supporting
a conclusion that both a legitimate and an illegitimate (i.e., more than one) motive may have played
a role in the challenged employment action.
See Adams
,
F. Title IX Claim (Count 30)
Title IX states that “[n]o person in the United States shall, on the basis of sex, be excluded
from participation in, be denied the benefits of, or be subjected to discrimination under any
education program or activity receiving federal financial assistance.” 20 U.S.C. § 1681(a). As
pleaded, Plaintiff’s Title IX claim appears to be based on sex discrimination. “Title IX does not
afford a private right of action for employment discrimination on the basis of sex in federally
funded educational institutions.”
Lowrey v. Texas A&M Univ. Sys.
,
As pleaded, Plaintiff’s allegations appear to be based on the kind of employment discrimination Title VII was designed to address rather than the sex-based discrimination in education programs or activities that Title IX was designed to prohibit. See Salazar v. S. San Antonio Indep. Sch. Dist. , 953 F.3d 273, 276 (5th Cir. 2017) (adjudicating a student’s sexual harassment claim against a school district). Moreover, Plaintiff failed to provide evidence that her Title IX allegations could be tied to any of the exceptions to Title VII’s exclusivity. See, e.g. , Taylor-Travis , 984 F.3d at 1118 (explaining the test for a Title IX retaliation claim that is not covered by Title VII).
The Court must conclude Plaintiff has failed to carry her summary judgment burden, and
Plaintiff has failed to assert a valid Title IX claim. Thus, the Court must grant summary judgment
in favor of Defendants.
See Lakoski
,
IV. C ONCLUSION
Although Defendant’s summary judgment evidence supports a few elements of Plaintiff’s
various prima facie burdens, the record before the Court is not sufficient to carry Plaintiff’s burdens
on any of her claims. Plaintiff does not otherwise raise a genuine issue of material fact on her
claims. The Court is therefore persuaded that summary judgment in favor of Defendants is
appropriate.
See, e.g.
,
Sterling v. United States
, No. 3:18-CV-0526-D,
SO ORDERED.
January 19, 2023.
Notes
[1] Plaintiff’s objections and response to Defendants’ Motion were the subject of several motions to extend Plaintiff’s deadlines and motions for reconsideration. The Court has adjudicated and addressed those motions. See (Docs. 166, 181, 187).
[2] The Court notes that several of Plaintiff’s counts are asserted against Collins, Currall, Rogers, or Stanley in their individual capacities. As shown hereunder, Plaintiff has failed to raise a genuine issue of material fact as to any of her remaining claims. Correspondingly, the Court pretermits any adjudication of whether Plaintiff may assert such against Collins, Currall, Rogers, or Stanley individually because such determination is unnecessary.
[3] The Court recognizes that the Commission on Human Rights has been replaced with the Texas Workforce Commission’s civil rights division. Waffle House, Inc. v. Williams , 313 S.W.3d 796, 798 n.1 (Tex. 2010) (citing T EX . L AB . C ODE A NN . § 21.0015). Throughout this memorandum opinion and order, the Court refers to Texas Labor Code Chapter 21 as the TCHRA.
[4] The Texas Supreme Court has explained that claims asserted under the TCHRA should be analyzed in the
same manner as its federal analogues.
See Mission Consol. Indep. Sch. Dist. v. Garcia
,
[5]
See, e.g.
,
Gorman v. Verizon Wireless Texas, L.L.C.
,
[6] The Court notes that, in her pleadings, Plaintiff repeatedly complains of being called a liar or otherwise
untruthful, which is a charge not based in any protected group.
See Johnson v. PRIDE Indus., Inc.
, 7 F.4th
392, 399–400 (5th Cir. 2021);
see, e.g.
,
Hernandez v. Yellow Transp., Inc.
,
[7] In regards to the fourth element—”the defendant either gave the promotion to someone outside of that
protected class or otherwise failed to promote the plaintiff because of his race”—the Court notes that the
record shows one of the professors who achieved tenure in the 2015-2016 tenure voting class was also
black.
Autry v. Fort Bend Indep. Sch. Dist.
,
[8] In
Esquivel
, as here, the plaintiff failed to respond to a motion for summary judgment. Nevertheless, Court
determined no genuine issue of material fact existed with respect to the plaintiff’s failure to promote claim
as
Esquivel . . . has not presented evidence that either the position was filled by someone who
was not Hispanic, or that she was not promoted because of her race. Esquivel has also not
presented evidence that she was replaced by someone who is male, or evidence that another
similarly situated male student, was promoted from a Student Trainee in Physical Science
to GS-7 Environmental Scientist. Accordingly, Esquivel fails to prove, or create a genuine
dispute of material fact, that the GS-7 Environmental Scientist position was filled by
someone who is not Hispanic or female, or that she was not promoted because she is
Hispanic or female.
Esquivel v. McCarthy
, No. 3:15-CV-1326-L,
[9] Courts use the terms “adverse employment action” and “adverse employment decision” interchangeably.
See, e.g.
,
Thompson v. Microsoft Corp.
,
[10] Notwithstanding, “pleadings are not evidence of the facts alleged therein.” Pullman Co. v. Bullard , 44 F.2d 347, 348 (5th Cir. 1930).
[11] The Court notes, however, that “segregation” is typically viewed under the ADA as a theory included within the term “discrimination.” 42 U.S.C. § 12112(b)(1) (The term “discrimination” “includes limiting, segregating or classifying a job applicant or employee in a way that adversely affects the opportunities or status of such applicant or employee because of the disability of such applicant or employee.”). Thus, such a claim would be subsumed by Plaintiff’s disability discrimination claims—addressed hereunder (Counts 17 and 29).
[12] The Court notes that Plaintiff’s Count 29 TCHRA disability discrimination claim, as pleaded, does not refer to any specific facts of an adverse employment decision. Nevertheless, the record contains evidence of only one employment action that constitutes an adverse employment action—Plaintiff’s negative tenure
[13] Notwithstanding, Plaintiff’s failure to respond to summary judgment also means that, for summary judgment purposes, she does not dispute Defendants’ factual contention that “tenure is not an essential function of her job.” (Doc. 127, at 44) (citing Doc. 128, at 118–19).
[14] The Court notes that Plaintiff’s Count 29 based on TCHRA disability discrimination mentions, in a single sentence: “[t]he Plaintiff alleges that the Defendant failed to accommodate her disability and ultimately fired her in violation of Chapter 21 of the Texas Labor Code.” The Court makes no determination as to whether Plaintiff properly pleaded a failure-to-accommodate claim under the TCHRA. However, on this record, such a claim would be subject to dismissal under the same analysis as her ADA failure-to- accommodate claim.
[15] Again, the Court does not consider pleadings as evidence.
See Pullman Co.
,
[16] The Court notes that Plaintiff’s pleading on Count 24 asserts “harassment” and a “retaliation” causes of action under the FMLA. The Court addresses further addresses the “retaliation” claim, hereunder.
[17] Furthermore, even if the Court were to construe Plaintiff’s FMLA harassment claim as a claim for hostile
work environment under the ADA—as the
Smith-Schrenk
court construed such an FMLA harassment
claim—there is no evidence in the record of harassment that would constitute such a claim, as discussed
above regarding Plaintiff’s Count 16.
See generally Smith-Schrenk v. Genon Energy Servs., L.L.C.
, No. H-
13-2902,
[18]
See generally
,
Garcia v. Pro. Cont. Servs., Inc.
,
[19] In lieu of precedent from the Fifth Circuit, the Court declines to address which causation standard is appropriate for FMLA retaliation claims. Furthermore, as there is no evidence in the record to support Plaintiff’s FMLA retaliation claim, the Court need not reach such a determination.
[20] “If a district court does not have substantial evidence before it supporting a conclusion that both a
legitimate and illegitimate motive may have played a role in the employment action, then the court would
not abuse its discretion in determining that the case does not involve mixed motives.”
Wilson v. L&B Realty
Advisors, LLP
, No. 3:20-CV-2059-G,
[21] “Despite the general rule, Fifth Circuit precedent provides that there are some exceptions to Title VII
preemption of Title IX claims made by employees of federally funded institutions.”
Stollings v. Tex. Tech.
Univ.
, No. 5:20-CV-250-H,