IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

SOPHIA GRAHAM §

§

Plaintiff, §

§

VS. § NO. 3-04-CV-2461-B

§

DALLAS INDEPENDENT SCHOOL §

DISTRICT, ET AL. §

§

Defendants. §

FINDINGS AND RECOMMENDATION OF THE

UNITED STATES MAGISTRATE JUDGE

Defendant Dallas Independent School District ("DISD") has filed a motion for summary

judgment in this 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. For the reasons stated herein, the

motion should be granted.

I.

Plaintiff Sophia Graham, an African-American female, was employed by DISD from 1993

until August 31, 2004. Most recently, plaintiff worked as a Specialist II in the Police and Security

Department where she had a variety of responsibilities, including preparing crime analysis reports

and conducting staff reviews of incident reports. Beginning in late 2001, plaintiff became an

outspoken critic of her supervisor, Chief Manuel Vasquez, for his perceived mistreatment of

African-American employees within the department. Plaintiff frequently expressed her

dissatisfaction with Vasquez at DISD board meetings and in other public forums, where she

criticized his plan to reorganize the Police and Security Department as racially discriminatory.

 

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 An audit conducted by Hodges revealed that plaintiff had underreported crimes committed on DISD property

during the months of August, September, and October 2003 by 31.7%. (Def. MSJ App. at 186). 

According to plaintiff, Vasquez and other DISD police officials reacted to this criticism by

discriminating and retaliating against her and by subjecting her to a hostile work environment.

Plaintiff complained of these actions in more than 20 grievances filed with DISD and nine charges

of discrimination filed with the Equal Employment Opportunity Commission ("EEOC") between

2002 and 2004. (See Def. MSJ App. at 193, ¶ 4 & 204, ¶ 5). 

Five alleged instances of discrimination or retaliation are at issue in this case. The first

incident occurred on September 8, 2003, when plaintiff was reprimanded by Deputy Chief Gary

Hodges for twice exposing her firearm in public view while not in uniform in violation of

departmental policy. No further disciplinary action was taken at that time. (Id. at 133). Two

months later, on November 25, 2003, Hodges reprimanded plaintiff for errors and omissions in her

District Index Crime Summary report.1

 Plaintiff was relieved of her staff review duties, reminded

to double-check the accuracy of her work, and warned that "failure to follow the directives in this

memo [] or to improve your performance . . . will result in more serious personnel actions." (Id. at

186-87). On December 1, 2003, plaintiff received a formal notice from Vasquez citing multiple

instances of insubordination, inappropriate conduct, and performance failures. In addition to the

incidents referred to in prior reprimands, Vasquez chided plaintiff for questioning directives from

her supervisors, for attempting to record a meeting in violation of DISD policy, and for making

racially inflammatory comments about other members of the police department both in written

responses to reprimands and in public comments to the school board. As a consequence of such

conduct, plaintiff was required to attend professional development and training classes and to

comply with the requirements of a "specific work performance plan" developed by her supervisors.

 

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 Plaintiff also sued Vasquez, Hodges, and another supervisor, Samuel L. Allen, in their individual capacities

and included claims under 42 U.S.C. § 1981 and for slander under Texas law. (See Plf. Orig. Compl. at 4, ¶ 15 & 5-6,

¶¶ 18-21). All claims, except the Title VII discrimination and retaliation claims against DISD, were previously dismissed

by the court on motion of the defendants. See Orders, 4/25/05 & 4/26/05.

(Id. at 63-64). On January 14, 2004, Vasquez accused plaintiff of abandoning her work duties to

attend a two-hour training class. Although plaintiff explained that she was not scheduled to report

to work until after the class had concluded, an internal affairs investigation sustained the allegation.

(Id. at 146-48). Plaintiff was reprimanded for her conduct and instructed to obtain supervisor

approval before leaving her assigned duties. (Id. at 161).

During the next four months, plaintiff continued to engage her supervisors in debate over the

scope and performance of her duties. (See id. at 164, 166, 167 & 171). Vasquez and Hodges viewed

this conduct as insubordinate and highly inappropriate. (Id. at 178, ¶ 13 & 183, ¶ 7). Finally, on

May 20, 2004, plaintiff was placed on administrative leave for allegedly ignoring an order from

Vasquez to stop talking to a juvenile detainee who was in custody for felony possession of an illegal

weapon on DISD property. (Id. at 98 & 177, ¶¶ 10-12). An internal affairs investigation determined

that plaintiff not only violated a direct order from her supervisor, but also interfered with an ongoing

criminal investigation by repeatedly interrupting the arresting officer while he was preparing an

incident report and breached security by opening the door to a locked, secure area while engaging

in a conversation with the suspect. (Id. at 67-71). Based on the results of that investigation and

other performance issues, plaintiff was notified that her employment contract with DISD would not

be renewed for the 2004-2005 school year. (Id. at 184, ¶ 14). Her contract expired on August 31,

2004. On November 15, 2004, plaintiff filed this action in federal district court alleging race

discrimination, gender discrimination, and retaliation in violation of Title VII.2

 Defendant now

moves for summary judgment as to all claims and causes of action. Plaintiff has filed a written

 

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3

 Defendant filed its motion for summary judgment and supporting materials on April 7, 2006.

response to the motion and submitted an appendix of evidence, to which defendant objects. The

court will consider these objections at the outset.

II.

Defendant objects to plaintiff's summary judgment response, parts of the declarations of

Sophia Graham, Timothy Grey, Michael McKinney, and William Perry, and certain documents

attached to the declarations. The objections are both procedural and substantive. As defendant

correctly observes, plaintiff was required to file a response, a supporting brief, and an appendix of

evidence on or before April 27, 2006--20 days after the motion for summary judgment was filed.3

See LCivR 7.1(e) & LCiv R 56.1. However, plaintiff did not tender an appendix of evidence to the

district clerk until April 28, 2006 and did not file her summary judgment response until April 30,

2006--one and three days late, respectively. Plaintiff has neither sought nor obtained leave of court

to file these materials out-of-time. Nor has she demonstrated good cause for modifying the time

limits established by the local rules for filing a response brief and an appendix of evidence. In fact,

plaintiff offers no explanation whatsoever for her tardy filings and does not even respond to

defendant's objections. For that reason alone, the court may decline to consider plaintiff's summary

judgment response and appendix. See Schwarz v. Potter, No. 1-04-CV-075-C, 2005 WL 1148734

at *1 (N.D. Tex. May 16, 2005) (refusing to consider untimely summary judgment response filed

without leave of court); Nelson v. City of Watauga, No. 4-03-CV-142-BE, 2004 WL 239748 at *1

(N.D. Tex. Jan. 13. 2004) (same).

Under ordinary circumstances, the court might overlook these untimely filings and consider

plaintiff's summary judgment response and evidence in the interests of justice. But this is no

ordinary case. Not only did plaintiff delay in filing her response and appendix, but the 16-page

 

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response does not include any citations to her 275-page appendix of evidence. See LCivR 56.5(e)

("A party whose motion or response is accompanied by an appendix must include in its brief

citations to each page of the appendix that supports each assertion that the party makes concerning

the summary judgment evidence."). This makes it difficult, if not impossible, for the court to

determine whether there are genuine issues of material fact for trial. See, e.g. Doddy v. Oxy USA,

Inc., 101 F.3d 448, 463 (5th Cir. 1996) (citations omitted) (court is not required to "comb the record"

in search of summary judgment evidence); Andrews v. CompUSA, No. 3-00-CV-1368-D, 2002 WL

265089 at *3 (N.D. Tex. Feb. 21, 2002), aff'd, 54 Fed. Appx. 413 (5th Cir. 2002) (characterizing

LCivR 56.5(c) as a "valuable tool for busy trial courts"). Moreover, this is not the first time plaintiff

has failed to comply with the federal rules or a court order. Plaintiff, through her former attorney,

also filed an untimely response to defendants' motion for partial judgment on the pleadings, which

response was stricken by the court. See Order, 4/25/05 at 1 n.1. That ruling should have put

plaintiff and her current attorney on notice of the importance of filing a summary judgment response

in a timely manner. In addition, plaintiff and her attorneys have obstructed the orderly disposition

of this case at every turn. When plaintiff failed to answer written discovery, defendant was required

to file three different motions to obtain answers to interrogatories and document requests. The court

first ordered plaintiff to answer discovery by July 18, 2005. See Order, 7/8/05. She failed to do so.

The court then ordered plaintiff to answer interrogatories and produce responsive documents by

November 22, 2005. See Order, 11/18/05. Plaintiff did not comply with that order until November

25, 2005--three days late. She also failed to supplement her interrogatory answers as agreed to by

counsel. As a result of this conduct, the court sanctioned plaintiff $7,000.00 for discovery abuse.

See Order, 4/10/06. Her attorneys have amassed another $71,709.85 in sanctions. See Order, 7/8/05

 

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 The court also sanctioned plaintiff $500.00, but directed Layer to pay the sanction in a subsequent order. See

Order, 7/27/05.

5

 The resolution of this issue pretermits consideration of defendant's substantive objections to plaintiff's

summary judgment evidence.

(sanctioning Phillip E. Layer $150.00);4 Order, 11/18/05 (sanctioning John D. Copeland $1,335.00);

Order, 1/10/96 (requiring Layer to reimburse defendants $70,224.85 in attorney's fees). Given

plaintiff's history of delay and contumacious conduct, the court declines to excuse any further rules

violations. See El-Kaissi v. Martinaire, Inc., Civ. A. No. L-03-132, 2005 WL 2897055 at *2 (S.D.

Tex. Nov. 3, 2005) (citing cases) (district courts have considerable discretion in deciding whether

to strictly apply local rules or overlook any transgressions). 

Plaintiff's response to defendant's motion for summary judgment and appendix of evidence

are stricken from the record as untimely. The court will consider the summary judgment motion

without the benefit of a response or any controverting evidence.5

III.

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). A summary judgment movant

who does not have the burden of proof at trial must point to the absence of a genuine fact issue.

Tubacex, Inc. v. M/V Risan, 45 F.3d 951, 954 (5th Cir. 1995). The burden then shifts to the

non-movant 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). Where, as here, the failure to comply with the local rules leads to the

exclusion of summary judgment evidence, summary judgment may not be granted automatically.

 

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El-Kaissi, 2005 WL 2897055 at *5 (citing cases). However, the court may accept as true the

undisputed facts adduced by the movant. See White v. Simpson, No. 3-04-CV-0728-D, 2006 WL

1007527 at *2 (N.D. Tex. Apr. 18, 2006) (Kaplan, J.) (citing cases). All evidence must be viewed

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

(5th Cir. 1993).

A.

The gravamen of plaintiff's complaint is that she was treated less favorably than similarly

situated, non-black female employees and male employees with respect to hiring, compensation,

promotion, and discipline and was retaliated against for opposing unlawful employment practices.

Defendant contends that most of these claims are barred by limitations. 

Under Title VII, an aggrieved party must file suit in federal district court within 90 days after

being notified of her right to sue by the EEOC. 42 U.S.C. § 2000e-5(f)(1); see also Price v. Digital

Equipment Corp., 846 F.2d 1026, 1027 (5th Cir. 1988). This limitations period is strictly construed

and must not be "disregarded by courts out of a vague sympathy for particular litigants." Baldwin

County Welcome Center v. Brown, 466 U.S. 147, 152, 104 S.Ct. 1723, 1726, 80 L.Ed.2d 196 (1984);

see also Taylor v. Books A Million, Inc., 296 F.3d 376, 378-79 (5th Cir. 2002), cert. denied, 123

S.Ct. 1287 (2003). Although plaintiff filed nine different charges of discrimination with the EEOC,

defendant maintains that only three of those charges are properly before the court: 

 Date Charge No. Allegation

December 9, 2003 310-2004-00953 Plaintiff was disciplined in

November 2003 and December

2003 in retaliation for filing a

prior EEOC charge and was

harassed by management officials

in weekly crime analysis

meetings

 

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August 3, 2004 310-2004-04118 P l a i n t i f f w a s p l aced on

administrative leave and notified

her contract would not be

renewed because of her gender

and race and in retaliation for

participating in an EEOC

investigation

September 15, 2004 310-2004-04628 Plaintiff was discharged because

of her gender and race and in

retaliation for filing prior EEOC

charges

Plaintiff offers no argument, much less evidence, that any of her other discrimination and retaliation

claims were filed within 90 days after receiving her right-to-sue letter. Accordingly, the only claims

warranting further review are those involving the disciplinary actions taken against plaintiff in

November and December 2003, her placement on administrative leave in May 2004, and her

termination effective August 31, 2004.

B.

In the context of the remaining claims, defendant is entitled to summary judgment unless

plaintiff presents sufficient direct or circumstantial evidence that would permit a reasonable trier of

fact to find that her race, gender, or protected activity were motivating factors in the disciplinary

actions taken by defendant. "Direct evidence is evidence that, if believed, proves the fact of

discriminatory animus without inference or presumption." Sandstad v. CB Richard Ellis, Inc., 309

F.3d 893, 897 (5th Cir. 2002), cert. denied, 123 S.Ct. 2572 (2003). Alternatively, plaintiff may rely

on circumstantial evidence to prove her discrimination and retaliation claims. First, plaintiff must

establish a prima facie case of discrimination or retaliation, which "creates a presumption that the

employer unlawfully discriminated against the employee." Texas Dep't of Community Affairs v.

Burdine, 450 U.S. 248, 254, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207 (1981). The burden then shifts

to defendant to articulate a legitimate, non-discriminatory reason for its employment decision. Id.,

 

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 The mixed-motive alternative for proving discrimination and retaliation under Title VII, endorsed by the

Supreme Court in Desert Palace, Inc. v. Costa, 539 U.S. 90, 123 S.Ct. 2148, 156 L.Ed.2d 84 (2003), is not applicable

here because plaintiff does not concede that discrimination and retaliation were not the sole reasons for her discipline

and termination. See Richardson v. Monitronics International, Inc., 434 F.3d 327, 333 (5th Cir. 2005).

101 S.Ct. at 1093. If the defendant meets its production burden, the prima facie case disappears and

plaintiff must "offer sufficient evidence to create a genuine issue of material fact . . . that the

defendant's reason is not true, but is instead a pretext for discrimination [or retaliation.]" Rachid v.

Jack In The Box, Inc., 376 F.3d 305, 312 (5th Cir. 2004) (internal quotations and citations omitted).6

Plaintiff has not adduced direct proof of discrimination or retaliation. Nor has she proved

discrimination or retaliation by circumstantial evidence. Although defendant concedes that plaintiff

is a member of a protected class, was qualified for the position she held, and suffered an adverse

employment action, (see Def. MSJ Br. at 6-7), there is no evidence that plaintiff did not violate the

work-place rules cited by defendant as a basis for its disciplinary action or that non-black female

employees and male employees who engaged in similar acts were not punished similarly. See

Walker v. Norris Cylander Co., No. 3-03-CV-1009-D, 2005 WL 2278080 at *6 (N.D. Tex. Sept. 19,

2005), citing Mayberry v. Vought Aircraft Co., 55 F.3d 1086, 1090 (5th Cir. 1995). Even if plaintiff

could make out a prima facie case of discrimination or retaliation, there is no evidence to rebut the

legitimate, non-discriminatory reasons articulated by defendant for the disciplinary actions taken

against her in November and December 2003, for placing her on administrative leave in May 2004,

and for terminating her employment effective August 31, 2004. To the contrary, the only evidence

in the record shows that plaintiff was disciplined for violating departmental policies and for repeated

instances of insubordination. Because plaintiff has failed to create a genuine issue of material fact

for trial with respect to her discrimination and retaliation claims, defendant is entitled to judgment

as a matter of law.

 

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RECOMMENDATION

Defendant's amended motion to strike plaintiff's summary judgment response and evidence

[Doc. #117] is granted. Plaintiff's response to defendant's motion for summary judgment [Doc.

#112] and appendix of evidence [Doc. #113] should be stricken from the record as untimely.

Defendant's motion for summary judgment [Doc. #103] should be granted. All claims against

defendant should be dismissed with prejudice.

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).

DATED: June 29, 2006.

 

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