1

 The employment-based permanent resident application process consists of three steps. First, the employer

must petition the Department of Labor for a labor certification on behalf of the alien employee by completing a Form

ETA-750. See 8 U.S.C. § 1182(a)(5)(A)(I). After obtaining a labor certification, the employer must file an I-140 petition

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

BRIGHT SIAW AFRIYIE §

§

Plaintiff, §

§

VS. § NO. 3-04-CV-2467-D

§

CITY OF DALLAS §

§

Defendant. §

FINDINGS AND RECOMMENDATION OF THE 

UNITED STATES MAGISTRATE JUDGE

Defendant City of Dallas ("the City") has filed a motion for summary judgment in this pro se

race discrimination and retaliation case brought under Title VII of the Civil Rights Act of 1964

("Title VII"), as amended, 42 U.S.C. § 2000e, et seq., and 42 U.S.C. § 1981. For the reasons stated

herein, the motion should be granted. 

I.

In February 2000, the City hired Plaintiff Bright Siaw Afriyie, a black Canadian citizen born

in Ghana, as an IT Analyst III in the Fire Rescue Department at a starting salary of $40,000 per year.

(See Plf. Orig. Compl. at 2, ¶ 5; Def. MSJ App. at 39, 150). The City also agreed to sponsor plaintiff

for an employment-based immigration visa. (See Plf. Orig. Compl. at 2, ¶ 6; Def. MSJ App. at 4).

Shortly after plaintiff started work, the City applied for an alien labor certification on his behalf,

which, if granted, would enable plaintiff to obtain permanent residence status in the United States.

(Plf. Orig. Compl. at 2, ¶ 6).1 While his application was pending, plaintiff accepted a new job

 

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with the Bureau of Citizenship and Immigration Services ("BCIS") requesting that the alien employee be allowed to

apply for a work visa. See id. § 1154. If the I-140 petition is approved, the alien may seek an adjustment of status to

that of a lawful permanent resident. See id. § 1255(a) & 8 U.S.C. § 1255(a).

working for Deputy Fire Chief Joe J. Kay as a GIS Analyst III. (Def. MSJ App. at 82). Plaintiff's

annual salary in his new position was $53,600. (Id. at 38, 151). In February 2002, the Texas

Workforce Commission ("TWC") rejected plaintiff's application for an alien labor certification,

noting, inter alia, that "[t]he employer's wage offer is below the prevailing wage rate for this labor

market and should be adjusted." (Id. at 103). This prompted plaintiff to request a pay raise from

$25.77 per hour to the prevailing market rate of $32.69 per hour. (Id. at 112-13). Assistant Fire

Chief Robert Bailey denied the request, but the City resubmitted plaintiff's application to the TWC

with a revised job description reflecting his duties as a GIS Analyst. (See id. at 114, 132-33). In

May 2003, the TWC rejected the revised application, noting again that plaintiff was being paid less

than the prevailing wage for his new position. (Id. at 126). Plaintiff renewed his request for a salary

increase, this time asking for $37.52 per hour--the prevailing wage rate identified by the TWC. (See

id. at 134-36). Assistant City Manager Charles Daniels refused to overturn the Fire Department's

decision and advised plaintiff that he considered the matter "closed." (Id. at 137, 164). 

In January 2004, plaintiff asked his supervisor, Deputy Chief Kay, to convert more than 26

hours of overtime to compensatory time-off. Kay denied the request and reminded plaintiff that "all

comp time must be approved in advance." (Id. at 100). That same month, plaintiff was transferred

from the dispatch section in the basement of City Hall to the GIS office on the seventh floor of the

same building. (Id. at 151). Plaintiff expressed dissatisfaction with the move, complaining that his

new workstation was noisy and did not have a telephone. (See id. at 154). A few weeks later,

plaintiff filed a grievance alleging that the City misclassified his job duties to justify a lower wage

rate, hindered his opportunities for advancement, and subjected him to an inequitable work

 

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2

 Plaintiff was represented by counsel when this lawsuit was filed. However, plaintiff has been proceeding pro

se since his attorney withdrew on March 22, 2006. 

environment for racially discriminatory reasons. (Id. at 83-84). Other grievances followed. (Plf.

MSJ App. at 47, 48-49, 50-51).

On May 13, 2004, plaintiff filed a formal charge of discrimination with the Equal

Employment Opportunity Commission ("EEOC"). (Def. MSJ App. at 138-39). After conducting

an investigation, the EEOC was unable to conclude that the information obtained established a

violation of the statutes. (Plf. MSJ App. at 07). Plaintiff then filed this action in federal district

court. In his complaint, plaintiff alleges that the City discriminated against him on account of his

race by paying him less than similarly situated white employees and retaliated against him for

complaining about this pay discrepancy. (See Plf. Orig. Compl. at 3-5, ¶¶ 13-23).2

 The City now

moves for summary judgment as to all claims and causes of action. The issues have been briefed

by the parties and the motion is ripe for determination.

II.

Summary judgment is proper when there is no genuine issue as to any material fact and the

movant is entitled to judgment as a matter of law. FED.R.CIV.P. 56(C); Celotex Corp. v. Catrett, 477

U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). Where, as here, the summary

judgment movant does not have the burden of proof at trial, the movant must point to the absence

of a genuine fact issue. See Duffy v. Leading Edge Products, Inc., 44 F.3d 308, 312 (5th Cir. 1995).

The burden then shifts to the nonmovant to show that summary judgment is not proper. Duckett v.

City of Cedar Park, 950 F.2d 272, 276 (5th Cir. 1992). The parties may satisfy their respective

burdens by tendering depositions, affidavits, and other competent evidence. Topalian v. Ehrman,

954 F.2d 1125, 1131 (5th Cir), cert. denied, 113 S.Ct. 82 (1992). All evidence must be viewed in

 

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the light most favorable to the party opposing the motion. Rosado v. Deters, 5 F.3d 119, 122 (5th

Cir. 1993). However, conclusory statements and testimony based merely on conjecture or subjective

belief are not competent summary judgment evidence. Topalian, 954 F.2d at 1131.

III.

The City moves for summary judgment on three broad grounds: (1) plaintiff cannot sue for

race discrimination under 42 U.S.C. § 1981; (2) plaintiff has failed to exhaust administrative

remedies with respect to his retaliation claim based on events that occurred before May 13, 2004;

and (3) plaintiff cannot prove that he was treated differently than similarly situated white employees

because of his race or that he was retaliated against for engaging in protected activity. The court will

address these arguments in turn.

A.

Plaintiff alleges that the City discriminated against him on account of his race in violation

of Title VII and 42 U.S.C. § 1981. (See Plf. Orig. Compl. at 4, ¶ 15). Although private employers

may be sued for race discrimination under both statutes, see, e.g. Runyon v. McCrary, 427 U.S. 160,

197, 96 S.Ct. 2586, 2607, 49 L.Ed.2d 415 (1976), persons employed by state or local governments

must bring a claim under 42 U.S.C. § 1983 in order to assert their substantive rights under section

1981. See Oden v. Oktibbeha County, 246 F.3d 458, 463-64 (5th Cir.), cert. denied, 122 S.Ct. 341

(2001). Stated differently, section 1983 is the "sole remedy for discrimination by persons acting

under color of state law." Id. at 463, citing Jett v. Dallas Independent School Dist., 491 U.S. 701,

731, 109 S.Ct. 2702, 2721, 105 L.Ed. 598 (1989). Here, plaintiff does not plead a cause of action

under section 1983. The City is therefore entitled to summary judgment with respect to plaintiff's

section 1981 claim. Id.; see also Bell v. Dallas Housing Authority, No. 3-02-CV1829-L, 2003 WL

22455385 at *4 (N.D. Tex. Sept. 23, 2003); Wallace v. Dallas Independent School Dist., No. 3-

 

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3

 Even if the court construes plaintiff's complaint to assert a cause of action under section 1983, such a claim

still fails as a matter of law because there is no allegation, much less evidence, that the City had an unconstitutional

policy or custom of race discrimination. See Bell, 2003 WL 22455385 at *4-5 (citing cases).

97-CV-2820-L, 2000 WL 575219 at *8 (N.D. Tex. May 11, 2000); Garrett v. Dallas Public Schools,

No. 3-98-CV-3016-G, 1999 WL 1212859 at *2 (N.D. Tex. Dec 16, 1999).3

B.

The City also moves for summary judgment with respect to plaintiff's retaliation claim based

on events that occurred before May 13, 2004-- the date of his EEOC charge. Under Title VII, a

plaintiff must exhaust administrative remedies before filing suit in federal court. See, e.g. Taylor

v. Books A Million, Inc., 296 F.3d 376, 378-79 (5th Cir. 2002), cert. denied, 123 S.Ct. 1287 (2003).

The exhaustion requirement also applies to claims of retaliation based on events that occurred prior

to filing a formal charge of discrimination. See Narasirisinlapa v. Communications Workers of

America, No. 3-04-CV-1643-BD, 2005 WL 1586590 at *1 (N.D. Tex. Jul. 6, 2005) (Kaplan, J.);

McCray v. DPC Industries, Inc., 942 F.Supp. 288, 294-95 (E.D. Tex. 1996). The Fifth Circuit has

adopted a rule of reason which permits the scope of legal proceedings to extend as far as, but not

further than, the scope of the agency investigation which could reasonably grow out of the

administrative charge. See Dollis v. Rubin, 77 F.3d 777, 781 (5th Cir. 1995); Young v. City of

Houston, 906 F.2d 177, 179 (5th Cir. 1990). 

The EEOC charge filed by plaintiff alleges only race and national origin discrimination.

Plaintiff did not check the box marked "retaliation" on the charge form or make any reference to

retaliation on the part of the City. (See Def. MSJ App. at 138). Nor did plaintiff notify the EEOC

that he had filed an internal grievance with the City alleging discrimination or opposed any

employment practice made unlawful by Title VII. As a result, plaintiff is barred from asserting a

retaliation claim based on events that occurred prior to the filing of his EEOC charge. See Miller

 

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4

 The court notes that plaintiff filed a second EEOC charge alleging retaliation on August 24, 2006-- two days

after the City filed its motion for summary judgment. (Plf. MSJ App. at 11-12). However, a charge of discrimination

or retaliation must be filed with the appropriate agency within 300 days of the alleged violation. 42 U.S.C. § 2000e5(e)(1); Messer v. Meno, 130 F.3d 130, 134 (5th Cir. 1997), cert. denied, 119 S.Ct. 794 (1999). To the extent plaintiff

attempts to salvage his otherwise barred retaliation claims by filing a second EEOC charge, the statute of limitations

precludes him from doing so.

v. Southwestern Bell Telephone Co., 51 Fed.Appx. 928, 2002 WL 31415083 at *6 (5th Cir. Oct. 7,

2002), cert. denied, 123 S.Ct. 1488 (2003), citing Cable v. Ivy Tech State College, 200 F.3d 467, 477

(7th Cir. 1999) (plaintiff failed to exhaust administrative remedies with respect to retaliation claim

where EEOC charge did not even "hint at retaliation, much less develop [a] factual basis for the

claim").4

C.

Plaintiff accuses the City of discrimination by paying him "at a considerably lower rate than

what was paid to similarly situated white employees." (Plf. Orig. Compl. at 2-3, ¶ 8 & id. at 3-4,

¶ 14). To prove this claim, plaintiff may rely on direct or circumstantial evidence, or both. See

Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893, 896 (5th Cir. 2002), cert. denied, 123 S.Ct. 2572

(2003). "Direct evidence is evidence that, if believed, proves the fact of discriminatory animus

without inference or presumption." Id. at 897. Such evidence may include statements made by the

employer or certain of its personnel which show on their face that an improper criterion served as

a basis, though not necessarily the sole basis, for the adverse employment action. See Fabela v.

Socorro Independent School Dist., 329 F.3d 409, 415 (5th Cir. 2003). If plaintiff adduces direct

evidence of discrimination, the burden shifts to the City to establish by a preponderance of the

evidence "that the same decision would have been made regardless of the forbidden factor." Fierros

v. Texas Dept. of Health, 274 F.3d 187, 192 (5th Cir. 2001), quoting Brown v. East Miss. Electric

Power Ass'n, 989 F.2d 858, 861 (5th Cir. 1993). 

 

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As direct evidence of discrimination, plaintiff points to a statement allegedly made by Deputy

Chief Kay when plaintiff asked for a wage adjustment to $37.52 per hour. According to plaintiff,

Kay responded to this request by stating, "There are a lot of white people and U.S. citizens more

qualified than [you] flipping hamburgers[.]" (Def. MSJ App. at 142, ¶ 7). Even if such a remark

was made, it is not probative of discriminatory animus because Kay did not have authority over the

employment decision at issue. See Krystek v. University of Southern Mississippi, 164 F.3d 251, 256

(5th Cir. 1999) (discussing requirements for proving discrimination by direct evidence). Instead,

plaintiff's pay raise was denied by Assistant Fire Chief Robert Bailey and Assistant City Manager

Charles Daniels. (Def. MSJ App. at 160-61, 164-65). There is no evidence that Kay had any

involvement, much less authority, over the decision not to adjust plaintiff's pay to the prevailing

wage rate. To the contrary, both Bailey and Daniels expressly deny that Kay had any input into their

decision. (Id. at 161, 164). Plaintiff's unsubstantiated and speculative belief that Bailey and Daniels

"could have been acting under the recommendation of Deputy Chief Kay" does not constitute direct

evidence of discrimination. See Lawrence v. University of Texas Medical Branch at Galveston, 163

F.3d 309, 313 (5th Cir. 1999) ("[A] subjective belief of discrimination, however genuine, [may not]

be the basis of judicial relief."); Martin v. El Nell Inc., No. 3-03-CV-2209-D, 2005 WL 2148651 at

*5 (N.D. Tex. Sept. 7, 2005) (Fitzwater, J.) (same).

D.

Nor has plaintiff adduced sufficient circumstantial evidence of discrimination to create a

genuine issue of material fact for trial. In order to establish a prima facie case of discriminatory

compensation, plaintiff must prove that he is paid less than non-black employees for work requiring

substantially the same responsibilities. See Williams v. Galveston Independent School Dist., 78

Fed.Appx. 946, 2003 WL 22426852 at *2 (5th Cir. Oct. 23, 2003), cert. denied, 124 S.Ct. 1714

 

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5

 Even if plaintiff could establish a prima facie case of discriminatory compensation, he has failed to adduce

any evidence that the City's explanation for not raising his salary to the prevailing market rate was pretextual. The City

explains that plaintiff did not receive a pay raise due to budgetary concerns. (See Def. MSJ App. at 160-61, 164). In

an attempt to rebut this explanation, plaintiff argues that the budget did not prevent him from receiving a 10% pay raise

upon his promotion from IT Analyst III to GIS Analyst III. That plaintiff was paid more money for a different job with

different responsibilities has no bearing on the ultimate issue of discriminatory intent.

(2004), citing Uviedo v. Steves Sash & Door Co., 738 F.2d 1425, 1431 (5th Cir. 1984), cert. denied,

106 S.Ct. 791 (1986); Pittman v. Hattiesburg Municipal Separate School Dist., 644 F.2d 1071, 1074

(5th Cir. 1981). Here, plaintiff compares his annual salary of $53,600 to Michael Miller and William

Morrison--white employees who allegedly earn more than $150,000 per year. (See Def. MSJ App.

at 142, ¶ 7; Plf. MSJ Resp. at 5). However, plaintiff makes no attempt to show that his job

responsibilities as a GIS Analyst III are substantially similar to the responsibilities of Miller and

Morrison. In fact, the uncontroverted evidence shows that Miller is a GIS Technical Manager in the

Public Works Department and Morrison works as a Fire Technician Specialist. (Def. MSJ App. at

158). Plaintiff admits that a Technical Manager is above an Analyst III in the GIS hierarchy. (Id.

at 36). Likewise, a Fire Technician Specialist has different responsibilities than a GIS Analyst. (Id.

at 158). Without at least some evidence that he was paid less than Miller and Morrison for work

involving substantially the same responsibilities, plaintiff cannot survive summary judgment with

respect to his race discrimination claim. See Lyons v. Burlington Coat Factory Warehouse Corp.,

No. 3-02-CV-0426-K, 2004 WL 515585 at *5 (N.D. Tex. Jan. 30, 2004) (granting summary

judgment in favor of employer where plaintiff failed to controvert evidence that comparator

employee had different job title and performed different work).5

E.

Plaintiff further alleges that the City retaliated against him by: (1) twice denying him a

promotion to Communications Manager; (2) altering his work conditions; (3) limiting his access to

necessary equipment and training; (4) denying him overtime and overtime pay; and (5) subjecting

 

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him to a criminal background check and unfair discipline. (See Plf. Orig. Compl. at 3, ¶ 9 & id. at

4-5, ¶ 21). To establish a prima facie case of retaliation, plaintiff must establish, inter alia, a causal

link between his protected activity and the adverse employment action. See Fierros, 274 F.3d at 191.

Although this burden is not onerous, plaintiff must demonstrate a causal link by producing at least

some evidence that the decisionmakers had knowledge of his protected activity. See Manning v.

Chevron Chemical Co., 332 F.3d 874, 883 n.6 (5th Cir. 2003), cert. denied, 124 S.Ct. 1060 (2004),

citing Medina v. Ramsey Steel Co., 238 F.3d 674, 684 (5th Cir. 2001). 

With respect to his failure to promote claim, plaintiff has failed to identify the

decisionmakers responsible for filling the open Communications Manager positions. Nor is there

any evidence that these unidentified decisionmakers were aware that plaintiff filed internal

complaints of discrimination against his supervisors. Similarly, there is no causal connection

between plaintiff's protected activity and any change in his working conditions, access to equipment,

and denial of overtime pay. The summary judgment evidence shows that plaintiff was transferred

from the dispatch section in the basement of City Hall to the GIS office on the seventh floor of the

same building in January 2004--one month before he filed his first internal grievance and four

months before his EEOC charge. (See Def. MSJ App. at 151). Plaintiff's access to the computer

network was limited and his request for overtime pay denied sometime before he was transferred.

(See id. at 151-52, 186-87). 

Plaintiff also contends that he was denied the opportunity to work overtime in retaliation for

engaging in protected activity. Although these overtime opportunities arose after plaintiff filed his

initial grievance in January 2004, plaintiff cannot establish that other similarly situated employees

were treated more favorably. A similarly situated employee is one who was treated differently under

"nearly identical" circumstances. See Mayberry v. Vought Aircraft Co., 55 F.3d 1086, 1090 (5th Cir.

 

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1995). Employees with different supervisors are not "nearly identical." See, e.g. Lawrence v. United

Airlines, Inc., No. 3-01-CV-0809-H, 2002 WL 1489536 at *3 (N.D. Tex. Jul. 10, 2002). Plaintiff

identifies Laura Spray, O'Brian Goldsberry, Steve Coffman, Bill Richardson, Allen Hall, and "all the

GIS analysts in the GIS department, all the IT analysts . . . in the CIS department, and all those who

work [under] Chief Kay" as similarly situated employees who were allowed to work overtime. (Def.

MSJ App. at 33). At the time of the alleged retaliation, plaintiff worked in the Fire-Rescue

Department under the supervision of Lieutenant George Snowden. (Id. at 154). GIS analysts and

IT analysts who work in different departments under different supervisors are not similarly situated

to plaintiff. Nor are Spray, Goldsberry, Coffman, Richardson, and Hall--all of whom are uniformed,

non-exempt employees who are permitted to work overtime. (Id. at 152-53, 155). By contrast,

plaintiff is a civilian, exempt employee subject to different wage and hour requirements. (Id. at 95,

155). In addition, Coffman, Richardson, and Hall are sworn firefighters who work under Deputy

Chief Kay, not Lieutenant Snowden. (Id. at 152).

Finally, plaintiff alleges that the City retaliated against him by denying him training

opportunities, taking his computer, subjecting him to a criminal background check, issuing a letter

of reprimand, and docking his pay. The City offers legitimate, non-retaliatory explanations for each

of these actions. According to Snowden, plaintiff was not allowed to attend a GIS training course

in April or May 2004 because it was too expensive and not within the department's budget. (Id. at

154). When plaintiff complained that his computer was slow, Snowden sent it out for repairs. This

happened twice. Both times, the computer was returned in less than a day. (Id. at 154, 166).

Snowden ordered a criminal background check on plaintiff because he has access to sensitive

information. (Id. at 154-55). As for the discipline and pay complaints, Snowden explains:

 

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Afriyie has been consistently late and consistently failed to inform me

of the reasons for his tardiness. I gave Afriyie a letter of counseling

regarding his tardiness, but Afriyie continued to be late. After one

instance of tardiness, I gave Afriyie unapproved leave without pay

because he was late to work again. I told him he could use some of

his accrued vacation leave to cover the time he was late. Afriyie

refused to use vacation leave, so I placed him on unapproved leave

without pay, which resulted in his pay being docked.

(Id. at 155). Because the City has articulated legitimate reasons for each of its employment decisions,

the burden shifts to plaintiff to offer evidence that the proffered explanations are pretextual. See

Evans v. City of Bishop, 238 F.3d 586, 590 (5th Cir. 2000). Other than plaintiff's own subjective

beliefs and conclusory assertions of pretext, no such evidence exists.

In sum, plaintiff has failed to adduce sufficient evidence to create a genuine issue of material

fact with respect to any act of retaliation that occurred after May 13, 2004. The City is entitled to

summary judgment as to this claim.

RECOMMENDATION

Defendant's motion for summary judgment [Doc. #25] should be granted.

A copy of this report and recommendation shall be served on all parties in the manner

provided by law. Any party may file written objections to the recommendation within 10 days after

 being served with a copy. See 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72(b). The failure to file

written objections will bar the aggrieved party from appealing the factual findings and legal

conclusions of the magistrate judge that are accepted or adopted by the district court, except upon

grounds of plain error. See Douglass v. United Services Automobile Ass'n, 79 F.3d 1415, 1417 (5th

Cir. 1996).

 

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DATED: December 22, 2006.

 

 

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