1“Chapter 21 was entitled the Texas Commission on Human Rights

Act until the abolishment of the Commission on Human Rights. In

2004, the ‘powers and duties’ of the Commission on Human Rights

were transferred to the Texas Workforce Commission Civil Rights

Division.” Tex. Dep’t of Criminal Justice v. Guard, 2007 WL

1119572, at *2 n.3 (Tex. App. 2007, no pet. h.) (not designated for

publication) (citations omitted) (citing Little v. Tex. Dep’t of

Criminal Justice, 148 S.W.3d 374, 377-78 (Tex. 2004), and Tex.

Labor Code Ann. 21.0015 (Vernon 2006)). For clarity, the court

will refer to this claim as brought under the TCHRA.

 IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

PATRECE KING, §

 §

Plaintiff, §

 § Civil Action No. 3:05-CV-0026-D

VS. §

 §

ENTERPRISE LEASING COMPANY §

OF DFW, et al., §

 §

Defendants. §

MEMORANDUM OPINION

 AND ORDER 

In this action alleging claims for race and sex discrimination

and retaliation under Title VII of the Civil Rights Act of 1964

(“Title VII”), 42 U.S.C. § 2000e et seq., 42 U.S.C. § 1981, and/or

the Texas Commission on Human Rights Act (“TCHRA”), Tex. Labor Code

Ann. § 21.001 et seq. (Vernon 2006),1 and for breach of contract,

defendants move for summary judgment. Concluding that defendants

are entitled to the relief they seek, the court grants the motions.

I

Plaintiff Patrece King (“King”), an African-American female,

is a former employee of Enterprise Leasing Company of DFW

 

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2

The court recounts the evidence in a light favorable to King

as the summary judgment nonmovant and draws all inferences in her

favor. E.g., U.S. Bank Nat’l Ass’n v. Safeguard Ins. Co., 422

F.Supp.2d 698, 701 n.2 (N.D. Tex. 2006) (Fitzwater, J.) (citing

Clift v. Clift, 210 F.3d 268, 270 (5th Cir. 2000)). 

3

As the court notes infra at § XI, defendants Enterprise

Company and Enterprise-Texas move for summary judgment on the same

grounds as does Enterprise-DFW. Because the court holds that these

defendants are entitled to summary judgment for the same reasons as

is Enterprise-DFW, the court need not address any additional

grounds on which these defendants rely.

- 2 -

(“Enterprise-DFW”) at its Dallas office.2 She began her career in

April 1996 as a management trainee, eventually becoming a Loss

Control Specialist, a position she held until she resigned in

October 2004.

At issue here are King’s claims that, based on her race and

sex, she was denied equal pay, denied tuition reimbursement,

denied a promotion, and subjected to a hostile work environment.

King also alleges that she was retaliated against for complaining

of discrimination, and that defendants are liable for breach of

contract for failing to comply with an August 6, 2003 Settlement

Agreement (“Agreement”).3

King filed three separate discrimination and/or retaliation

charges with the Equal Employment Opportunity Commission (“EEOC”).

In her June 27, 2003 charge, King complained of race-based wage

discrimination. In an October 4, 2004 charge, she stated that her

employer had denied her request for tuition reimbursement because

of her race. In her February 1, 2005 charge, King alleged race and

 

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4King’s sex-based discrimination claims are brought under

Title VII and the TCHRA.

5King also relies in her summary judgment response on a claim

for unequal pay brought under the Equal Pay Act of 1963, 29 U.S.C.

§ 206(d). As the court explains infra at § IV(B), this cause of

action has not been pleaded and will not be considered on the

merits.

6King has filed a single, corrected combined response brief to

defendants’ motions for summary judgment. In this memorandum

opinion and order, the court will refer to this brief as “P. Br.”

- 3 -

sex discrimination based on the failure to transfer her past-due

accounts to another employee in January 2004, her supervisor’s

refusal to recommend her for a promotional opportunity, and

retaliation for filing her June 27, 2003 EEOC charge.

King later filed this suit against Enterprise-DFW, Enterprise

Rent-A-Car Company (“Enterprise Company”), and Enterprise Rent-ACar Company of Texas (“Enterprise-Texas”). She sues for race and

sex-based discrimination, hostile work environment, and retaliation

under Title VII, 42 U.S.C. § 1981,4

 and/or the TCHRA. King also

sues for breach of contract arising from the Agreement that relates

to her June 27, 2003 race discrimination charge.5 Defendants move

for summary judgment. King opposes the motions.6

II

Under Title VII, it is “an unlawful employment practice for an

employer . . . to discriminate against any individual with respect

to . . . compensation . . . because of such individual’s race . . .

[or] sex.” 42 U.S.C. § 2000e-2(a)(1). Section 1981 guarantees

 

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“[a]ll persons within the jurisdiction of the United States . . .

the same right . . . to make and enforce contracts” regardless of

race. 42 U.S.C. § 1981(a). Under the TCHRA, “[a]n employer

commits an unlawful employment practice if because of race [or] sex

. . . the employer . . . discharges an individual or discriminates

in any other manner against an individual . . . .” Tex. Labor Code

Ann. § 21.051 (Vernon 2006). Claims of race discrimination brought

under Title VII, § 1981, and the TCHRA, and of sex discrimination

brought under Title VII and the TCHRA, are governed by the same

evidentiary framework. See LaPierre v. Benson Nissan, Inc., 86

F.3d 444, 448 n.2 (5th Cir. 1996) (addressing Title VII and

§ 1981); Shackelford v. Deloitte & Touche, LLP, 190 F.3d 398, 404

n.2 (5th Cir. 1999) (addressing Title VII and the TCHRA).

Because Enterprise-DFW will not have the burden of proof at

trial on King’s claims, it can meet its summary judgment obligation

by pointing the court to the absence of evidence to support them.

See Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once it

does so, King must then go beyond her pleadings and designate

specific facts showing there is a genuine issue for trial. See id.

at 324; Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.

1994) (en banc) (per curiam). Summary judgment is mandatory if

King fails to meet this burden. See Little, 37 F.3d at 1076. An

issue is genuine “if the evidence is such that a reasonable jury

could return a verdict for the nonmoving party.” Anderson v.

 

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- 5 -

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). King’s failure to

produce proof as to any essential element renders all other facts

immaterial. See Edgar v. Gen. Elec. Co., 2002 WL 318331, at *4

(N.D. Tex. Feb. 27, 2002) (Fitzwater, J.) (citing Celotex Corp.,

477 U.S. at 323). 

In the context of her race discrimination claims under Title

VII, § 1981, and the TCHRA, and her sex discrimination claims under

Title VII and the TCHRA, King must present sufficient direct or

circumstantial evidence that would permit a reasonable jury to find

that her race or sex was a motivating factor in Enterprise-DFW’s

decisions. See, e.g., Roberson v. Alltel Info. Servs., 373 F.3d

647, 652 (5th Cir. 2004) (addressing Title VII claims for race,

sex, and age discrimination). “‘Direct evidence is evidence that,

if believed, proves the fact of discriminatory animus without

inference or presumption.’” West v. Nabors Drilling USA, Inc., 330

F.3d 379, 384 n.3 (5th Cir. 2003) (Fitzwater, J.) (age

discrimination case) (quoting Sandstad v. CB Richard Ellis, Inc.,

309 F.3d 893, 897 (5th Cir. 2002)). Such evidence of

discrimination, however, is rare. See, e.g., Rutherford v. Harris

County, Tex., 197 F.3d 173, 180 n.4 (5th Cir. 1999) (Fitzwater, J.)

(stating that “direct evidence . . . ‘is rare in discrimination

cases, [and] a plaintiff must ordinarily use circumstantial

evidence to satisfy her burden of persuasion.’”) (brackets in

original) (quoting Rhodes v. Guiberson Oil Tools, 75 F.3d 989, 993

 

 Case 3:05-cv-00026-D Document 164 Filed 07/11/07 Page 5 of 41 PageID 2634
- 6 -

(5th Cir. 1996) (en banc)). A plaintiff who offers “sufficient

direct evidence of intentional discrimination should prevail, just

as in any other case where a plaintiff meets his burden.” Nichols

v. Loral Vought Sys. Corp., 81 F.3d 38, 40 (5th Cir. 1996) (citing

Portis v. First Nat’l Bank of New Albany, Miss., 34 F.3d 325, 328

n.6 (5th Cir. 1994)). 

Because King has not adduced direct proof of race or sex

discrimination, she must rely on circumstantial evidence. King can

prove discrimination using the “modified McDonnell Douglas

approach.” Rachid v. Jack in the Box, Inc., 376 F.3d 305, 312 (5th

Cir. 2004) (age discrimination case). As modified, McDonnell

Douglas consists of three stages. 

First, King must establish a prima facie case of

discrimination that, if demonstrated, “creates a presumption that

[Enterprise-DFW] unlawfully discriminated against [her].” Tex.

Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 254 (1981).

Second, the burden then shifts to Enterprise-DFW to articulate a

legitimate, nondiscriminatory reason for the adverse employment

action about which she complains. See St. Mary’s Honor Ctr. v.

Hicks, 509 U.S. 502, 506-07 (1993). Enterprise-DFW’s burden is one

of production, not persuasion, and involves no credibility

assessments. See, e.g., West, 330 F.3d at 385. 

Third, if Enterprise-DFW meets its production burden, then

King may proceed under one of two alternatives: the pretext

 

 Case 3:05-cv-00026-D Document 164 Filed 07/11/07 Page 6 of 41 PageID 2635
7In view of the court’s decisions infra that King did not

exhaust her claims or that she has failed to establish a prima

facie case, the court need not address this argument.

- 7 -

alternative or the mixed-motives alternative. See Rachid, 376 F.3d

at 312. Under the pretext alternative, King must “offer sufficient

evidence to create a genuine issue of material fact . . . that

[Enterprise-DFW’s] reason is not true, but is instead a pretext for

discrimination.” Id. (internal quotations omitted). Under the

mixed-motives alternative, King must offer sufficient evidence to

create a genuine issue of material fact “that [Enterprise-DFW’s]

reason, while true, is only one of the reasons for its conduct, and

another motivating factor is [King’s] protected characteristic[.]”

Id. (internal quotations omitted).

III

Enterprise-DFW moves for summary judgment dismissing King’s

unequal pay claim brought under Title VII, § 1981, and the TCHRA.

It posits that, to the extent the claim is based on conduct that

occurred on or before August 6, 2003, it is completely barred by

the Agreement;7 that King failed to exhaust her Title VII- and

TCHRA-based unequal pay claims to the extent based on conduct that

occurred after August 6, 2003; and that she cannot establish a

prima facie case, Enterprise-DFW has articulated a legitimate,

nondiscriminatory reason for its decision, and King cannot prove

pretext.

 

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- 8 -

A

The court considers first whether King exhausted her unequal

pay claims under Title VII and TCHRA to the extent based on conduct

that occurred after August 6, 2003.

“The [TCHRA] requires the exhaustion of state remedies as a

jurisdictional prerequisite.” Jones v. Grinnell Corp., 235 F.3d

972, 974 (5th Cir. 2001) (citing Schroeder v. Tex. Iron Works,

Inc., 813 S.W.2d 483, 485 (Tex. 1991)). “If a complainant fails to

exhaust his state administrative remedies, the [TCHRA]

jurisdictionally bars this court from hearing the case regardless

of equitable and policy concerns.” Id. (citing Zevator v.

Methodist Hosp. of Houston, 1995 WL 500637, at *2 (S.D. Tex. Mar.

30, 1995); Ridgway’s Inc. v. Payne, 853 S.W.2d 659, 663 (Tex. App.

1993, no writ)). “In order to comply with this exhaustion

requirement, an employee must: (1) file a complaint with the [Texas

Commission on Human Rights (“TCHR”)] within 180 days of the alleged

discriminatory act; (2) allow the TCHR to dismiss the complaint or

resolve the complaint within 180 days before filing suit; and (3)

file suit no later than two years after the complaint is filed.”

Wiltshire v. Humpal Physical Therapy, P.C., 2005 WL 2091092, at *2

(Tex. App. Aug. 31, 2005, no pet.) (not designated for

publication); City of Houston v. Fletcher, 63 S.W.3d 920, 922 (Tex.

 

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8As noted, see supra note 1, the powers and duties of the TCHR

have been transferred to the Texas Workforce Commission Civil

Rights Division.

9The court recognizes that there is a split of authority

within the Fifth Circuit about whether exhaustion implicates the

court’s subject matter jurisdiction. See Pacheco v. Mineta, 448

F.3d 783, 788 n.7 (5th Cir. 2006) (“There is disagreement in this

circuit on whether a Title-VII prerequisite, such as exhaustion, is

merely a prerequisite to suit, and thus subject to waiver and

estoppel, or whether it is a requirement that implicates subject

matter jurisdiction.”). For purposes of this decision, the court

will address exhaustion in jurisdictional terms, but it notes that

the result would be the same even if the court considered

exhaustion to be “merely a prerequisite to suit.”

- 9 -

App. 2002, no pet.).8 A complaint filed with the EEOC, and

forwarded by the EEOC to the TCHR, satisfies the requirements of

the TCHRA. Price v. Philadelphia Am. Life Ins. Co., 934 S.W.2d

771, 773-74 (Tex. App. 1996, no writ). “[E]xhaustion occurs when

the complainant files a timely charge with the commission and waits

181 days to file suit.” City of Houston, 63 S.W.3d at 922.

Similarly, the filing of an administrative complaint is

ordinarily a jurisdictional prerequisite to a Title VII action.

Dollis v. Rubin, 77 F.3d 777, 781 (5th Cir. 1995) (citing Ray v.

Freeman, 626 F.2d 439, 442 (5th Cir. 1980)).9 Federal courts do

not have jurisdiction to consider unexhausted Title VII claims.

Nat’l Ass’n of Gov’t Employees v. City Pub. Serv. Bd. of San

Antonio, 40 F.3d 698, 711 (5th Cir. 1994) (citing Tolbert v. United

States, 916 F.2d 245, 247-48 (5th Cir. 1990) (per curiam)).

Exhaustion does not occur until the plaintiff files a timely charge

with the EEOC and is entitled to receive a “right-to-sue” letter.

 

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10King does not advance any claims based on discriminatory acts

that occurred before August 6, 2003.

- 10 -

42 U.S.C. § 2000e-5(e) and (f); see also Taylor v. Books a Million,

Inc., 296 F.3d 376, 379 (5th Cir. 2002). “The lawsuit that follows

is limited in scope to the EEOC investigation that could reasonably

be expected to grow out of the charge of discrimination. In other

words, the complaint may encompass any kind of discrimination ‘like

or related to’ allegations contained in the EEOC charge.” Hayes v.

MBNA Tech., Inc., 2004 WL 1283965, at *6 (N.D. Tex. June 9, 2004)

(Fitzwater, J.) (citations omitted).

B

Enterprise-DFW argues that King’s only discrimination charge

that included a race-based unequal pay claim was the June 27, 2003

charge, this charge was resolved by the August 6, 2003 Agreement,

and the EEOC subsequently closed its investigation; that King’s

October 4, 2004 and February 1, 2005 charges did not allege racebased unequal pay, and no EEOC charge alleged sex-based unequal

pay; and that King has failed to exhaust her administrative

remedies.

King does not specifically respond to these arguments.

Instead, she focuses on the validity and scope of the August 6,

2003 Agreement in an attempt to prevail on claims based on

discriminatory acts that occurred before that date.10 Absent

argument or evidence that relates to exhaustion, and discerning no

 

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11King’s unequal pay claims would also fail, even assuming that

they were properly exhausted, for reasons explained below.

12Enterprise-DFW fails to identify explicitly a legitimate,

nondiscriminatory reason for King’s allegedly unequal pay. But

this is not fatal to its motion because the court need not reach

the second stage of the McDonnell Douglas framework or address

- 11 -

basis in the summary judgment record to hold that King has

exhausted her administrative remedies under Title VII and the TCHRA

with respect to her race- and sex-based unequal pay claims based on

conduct that occurred after August 6, 2003, the court holds that

Enterprise-DFW is entitled to summary judgment dismissing these

claims to that extent.11

IV

The court now considers whether Enterprise-DFW is entitled to

summary judgment dismissing King’s unequal pay claims based on

conduct that occurred on or before August 6, 2003.

A

To establish a prima facie case of a violation of Title VII,

§ 1981, or the TCHRA based on unequal pay, King must prove that she

was being paid less than a member of a different race or sex for

work requiring substantially the same responsibility. Pittman v.

Hattiesburg Mun. Separate Sch. Dist., 644 F.2d 1071, 1074 (5th Cir.

Unit A May 1981) (addressing unequal pay and constructive discharge

claims). Enterprise-DFW argues that King’s unequal pay claim fails

because she cannot establish a prima facie case, and,

alternatively, she cannot demonstrate pretext.12 It points to the

 

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pretext.

13Enterprise-DFW relies on ¶¶ 9-11 of the declaration of

Michele Stang (“Stang”). On September 27, 2006 King filed a motion

to strike all or parts of the declarations of Stang and Gretchen

Burkhart (“Burkhart”). Because the court is not relying on the

parts of the Stang and Burkhart declarations to which King objects,

it denies the motion to strike as moot.

- 12 -

absence of evidence that King was paid less than non-AfricanAmerican or male employees who performed substantially the same

work. Enterprise-DFW maintains that King’s identification of Sarah

Kiley (“Kiley”) as a comparator is misplaced, because the evidence

shows that Kiley was actually paid less than King,13 and that King

was the highest paid Loss Control employee from August 2003 until

her resignation. Enterprise-DFW also posits that King has failed

to identify any relevant comparator whose work involved

substantially the same responsibilities.

King responds that she has “more than enough evidence” to

establish a prima facie violation of Title VII and the Equal Pay

Act of 1963 (“EPA”), 29 U.S.C. § 206(d). She contends that

Enterprise-DFW’s arguments are undercut by its failure to

substantiate a legitimate, nondiscriminatory reason for the pay

differential. King also maintains that Enterprise-DFW’s failure to

produce pay records for male comparators is an “intentional

misdeed,” in derogation of an order of the magistrate judge, and

that this conduct “constitutes a pattern and practice of

discrimination.” She challenges as “self-serving” and unsupported

 

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- 13 -

by the record evidence Enterprise-DFW’s assertion that she was the

highest paid Loss Control employee.

King cites the deposition testimony of Scott Yaguchi

(“Yaguchi”), the General Manager of Enterprise-DFW, to support her

apparent claim that Enterprise-DFW is liable under the EPA and/or

Title VII for race-based pay discrimination. She posits that the

EPA and Title VII require that Enterprise-DFW explain any pay

disparity through the affirmative defenses of merit, production,

seniority, or a factor other than sex, none of which has been

pleaded. King also maintains that under Fed. R. Civ. P. 26 and 37,

any assertion made regarding an employee’s pay that was not

produced during discovery is inadmissible.

Enterprise-DFW replies that Kiley is the only wage comparator

whom King has identified, and it posits that her EPA claim is

barred because she did not plead it. Enterprise-DFW argues that

the cited testimony of Yaguchi “mistakenly” refers to a pay

disparity between Kiley and King that existed prior to King’s June

27, 2003 race-based unequal pay charge. In view of the Agreement

and King’s apparent abandonment of Kiley as a comparator,

Enterprise-DFW maintains that Yaguchi’s testimony is irrelevant.

It also asserts that King is now attempting to rely on an

improperly-raised EPA claim alleging sex-based pay discrimination

 

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14“[EPA] claims do not require exhaustion of administrative

remedies.” Stith v. Perot Sys. Corp., 122 Fed. Appx. 115, 119 (5th

Cir. 2005) (citation omitted).

- 14 -

that is unexhausted,14 and for which there is no evidentiary

support. Enterprise-DFW argues that King’s failure to identify any

relevant Caucasian male comparator is fatal to her claim, and it

posits that despite King’s assertions, it complied with the

magistrate judge’s order by providing King, on at least three

occasions, compensation information for comparable male employees.

B

The court declines to consider King’s EPA claim because she

did not plead it and instead raises it improperly for the first

time in her summary judgment response. See, e.g., Jackson v. Fed.

Express Corp., 2006 WL 680471, at *1 n.1 (N.D. Tex. Mar. 14, 2006)

(Fitzwater, J.) (citing Cutrera v. Bd. of Supervisors of La. State

Univ., 429 F.3d 108, 113 (5th Cir. 2005) (“A claim which is not

raised in the complaint but, rather, is raised only in response to

a motion for summary judgment is not properly before the court.”).

C

 The court now considers King’s race- and sex-based unequal

pay claims under Title VII, § 1981, and/or the TCHRA. These claims

are subject to the modified McDonnell Douglas burden-shifting

framework. King must therefore establish a prima facie case of

discrimination, which “creates a presumption that [Enterprise-DFW]

unlawfully discriminated against [her].” Burdine, 450 U.S. at 254.

 

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- 15 -

The court holds that King has failed to meet her burden of

establishing a prima facie case.

King’s assertion that she has “more than enough” evidence to

establish a violation is merely an unsworn, conclusory allegation.

“[C]onclusory allegations . . . and unsubstantiated assertions are

inadequate” to defeat summary judgment. Ramsey v. Henderson, 286

F.3d 264, 269 (5th Cir. 2002) (internal quotation marks omitted)

(quoting Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1429

(5th Cir. 1996) (en banc)); see also Lawrence v. Univ. of Tex. Med.

Branch, 163 F.3d 309, 313 (5th Cir. 1999) (per curiam) (“[A]

subjective belief of discrimination, however genuine, [may not] be

the basis of judicial relief.”) (second alteration in original)

(quoting Elliott v. Group Med. & Surgical Serv., 714 F.2d 556, 567

(5th Cir. 1983)); Ray v. Tandem Computers, Inc., 63 F.3d 429, 435

(5th Cir. 1995) (“Bald assertions of . . . discrimination are

inadequate to permit a finding that proscribed discrimination

motivated [defendant’s] actions against [the plaintiff].”).

Neither can King avoid her burden merely by pointing to

Enterprise-DFW’s failure to articulate or adduce evidence of a

legitimate, nondiscriminatory reason for the alleged pay disparity.

Enterprise-DFW has discharged its initial burden as the summary

judgment movant of pointing the court to the absence of evidence of

a prima facie case of race- and sex-based pay discrimination. To

survive summary judgment, King is obligated to adduce evidence that

 

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15The court has denied as moot King’s motion to strike

Burkhart’s declaration. See supra note 13. The court’s

consideration, at King’s urging, of Yaguchi’s testimony concerning

what Burkhart said, is not inconsistent with the court’s decision

regarding King’s motion to strike Burkhart’s declaration.

- 16 -

is sufficient to establish a prima facie case. Enterprise-DFW’s

alleged failure to articulate or support with evidence a

legitimate, nondiscriminatory reason for the alleged pay disparity

does not relieve King of this initial burden, which sequentially

precedes Enterprise-DFW’s burden of production. See Burdine, 450

U.S. at 254. King’s challenge to the evidentiary sufficiency and

self-serving nature of Enterprise-DFW’s assertion that King was the

highest paid Loss Control employee is similarly insufficient to

relieve King of this obligation.

King’s reliance on the Yaguchi deposition to raise a fact

issue regarding whether she was the victim of racially

discriminatory wages is also misplaced. Yaguchi testified that

Gretchen Burkhart (“Burkhart”),15 a former Group Human Resources

Manager at Enterprise-DFW, 

had told me that pay disparity, she felt that

it was what you just said, based on race. She

looked into it and found —— found a small

discrepancy, and last that I knew, she worked

it out.

P. App. 305. Enterprise-DFW posits, and King does not appear to

dispute, that Yaguchi was referring to the putative pay disparity

that existed between Kiley and King. But as the court has already

held, to establish a prima facie case of race-based pay

 

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- 17 -

discrimination, King must show not only that she was being paid

less than a member of a different race, but also that the alleged

comparator’s job required substantially the same level of

responsibility. See Pittman, 644 F.2d at 1074. Thus even assuming

that Yaguchi’s testimony is competent evidence and is probative of

the existence of a pay disparity between Kiley and King, King has

failed to point the court to evidence that Kiley’s job carried

substantially the same responsibility, and King appears to have

abandoned Kiley as a relevant comparator. See P. Br. 23

(“Plaintiff’s unequal pay claim is premised upon her assertions

that she was paid less than her [Caucasian] male peers . . . .”

(emphasis added)). Moreover, Yaguchi’s testimony that Burkhart

told him that the disparity was “based on race” is conclusory, and

is in any case insufficient to establish a prima facie case of

race-based pay discrimination.

To the extent King advances a sex-based pay discrimination

claim under Title VII and the TCHRA, Yaguchi’s testimony is

insufficient to raise a genuine issue of material fact because

Kiley and King are both female. See, e.g., Lowrey v. Texas A&M

Univ. Sys., 11 F.Supp.2d 895, 907 (S.D. Tex. 1998) (holding that

sex-based pay discrimination plaintiff must show she was paid less

than a nonmember of the protected class).

King’s reliance on Enterprise-DFW’s purported failure to

produce the pay records of unspecified male employee comparators is

 

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16King only complains about the failure to produce pay records

for male comparators. She does not rely on any failure to produce

evidence of a putative comparator’s job responsibilities, or that

the alleged failure to produce pay records has prevented her from

identifying relevant comparators in the first place. See P. Br.

24. 

Moreover, the court is not persuaded by King’s conclusory

allegations——which are not supported by cited evidence——regarding

defendants’ alleged noncompliance with the magistrate judge’s

discovery order.

- 18 -

also misplaced. Insofar as it relates to her sex-based EPA claim,

the court has already determined that the claim has not been

pleaded and is not at issue. The court therefore need only address

whether Enterprise-DFW’s alleged failure to produce the pay records

is somehow sufficient to relieve King of her burden of establishing

a prima facie case of race-based unequal pay under Title VII,

§ 1981, and the TCHRA, or sex-based unequal pay under Title VII and

the TCHRA (assuming that those claims are properly raised). The

court now holds that it is not. 

Even if produced, the pay records of the other employees would

be insufficient of themselves to establish that a non-AfricanAmerican or male employee’s job encompassed substantially the same

responsibilities as did King’s.16 See Pittman, 644 F.2d at 1074;

Lowrey, 11 F.Supp.2d at 907. King has failed to identify a single

non-African-American or male comparator, and thus has offered no

basis on which to find that she was paid less than a non-AfricanAmerican or male employee for work requiring substantially the same

responsibilities. Accordingly, to defeat summary judgment, she

 

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- 19 -

cannot rely on Enterprise-DFW’s alleged failure to produce pay

records. And, even if Enterprise-DFW failed during discovery to

produce records, the court rejects as lacking merit her assertion

that this conduct constitutes “a pattern and practice of

discrimination.” P. Br. 25.

Neither can King defeat summary judgment by relying

on Enterprise-DFW’s failure to plead affirmative defenses

explaining the pay disparity. Even if the court assumes arguendo

that the Bennet Amendment incorporates into the Title VII framework

the EPA’s affirmative defenses of merit, production, seniority, or

a factor other than sex, see, e.g., Kouba v. Allstate Insurance

Co., 691 F.2d 873, 874 n.2 (9th Cir. 1982) (citing 42 U.S.C.

§ 2000e-2(h)), it does not follow that the availability of these

defenses in a Title VII sex-based wage discrimination is itself

sufficient to relieve King of her burden as the plaintiff and

summary judgment nonmovant of establishing a prima facie case of

sex-based wage discrimination.

Accordingly, the court holds that King has failed to establish

a prima facie case of race-based or sex-based pay discrimination

and that Enterprise-DFW is entitled to summary judgment on these

claims.

V

King alleges that Enterprise-DFW discriminated against her by

denying her November 14, 2003 request for tuition reimbursement for

 

 Case 3:05-cv-00026-D Document 164 Filed 07/11/07 Page 19 of 41 PageID 2648
17As the court notes above, see supra note 13, the court denies

as moot King’s motion to strike Stang’s declaration.

- 20 -

three courses that she took as part of a masters degree program.

A

Enterprise-DFW posits that King’s request was denied under its

discretionary reimbursement program, and that the denial does not

constitute an adverse employment action. It relies in part on the

declaration of Michele Stang (“Stang”), in which she avers that

Enterprise-DFW does not provide tuition reimbursement for employees

pursing masters degrees or other advanced degrees.17 Enterprise-DFW

also posits that its discretionary reimbursement program repeatedly

states that it will consider reimbursement requests, and that it

may decline in its discretion to reimburse some or all of the

costs.

Enterprise-DFW also contends that King has failed to show that

the denial negatively impacted her job duties, compensation, or

available benefits, and it maintains that she has failed to

identify a similarly situated employee outside the protected class

who was treated more favorably. It argues that Tamarah Henson

(“Henson”), whom King identifies as a comparator, was not similarly

situated because, unlike King, she was employed as an accountant

and was responsible, inter alia, for creating financial statements

and using management information systems. Moreover, it maintains

that Henson sought reimbursement for courses that were directly

 

 Case 3:05-cv-00026-D Document 164 Filed 07/11/07 Page 20 of 41 PageID 2649
18According to Enterprise-DFW’s undisputed statement of facts,

King took courses entitled “Management and Organization,” “Decision

Making Tools and Techniques,” and “Global Business.” D. Br. 10.

19It is not clear that King ever asserted such a claim. See

3d. Am. Compl. 4-11.

- 21 -

related to her duties as an accountant, while King requested that

she be reimbursed for courses not directly related to her duties as

a Loss Control Specialist.18 

Enterprise-DFW argues in the alternative that King has failed

to present evidence that its legitimate, nondiscriminatory reason

for its discretionary denial was a pretext for discrimination. It

asserts that King’s request was denied because it did not meet the

parameters of the reimbursement policy. Specifically, the courses

for which she sought reimbursement were not directly related to

handling claims, files, or insurance, and would not enhance her

skills or knowledge in the exercise of her duties.

B

King appears to abandon any independent discrimination claim

for the alleged denial of her tuition reimbursement request.19 She

instead posits that the denial is evidence that supports her

hostile work environment and retaliation claims. See P. Br. 28.

The court will accordingly address the merits of these allegations

below, in the context of King’s hostile work environment and

retaliation claims. To the extent King is pursuing an independent

discrimination claim based on Enterprise-DFW’s alleged denial of

 

 Case 3:05-cv-00026-D Document 164 Filed 07/11/07 Page 21 of 41 PageID 2650
20Although King states that she was never “again selected for

or recommended for promotion after filing her EEOC charge,” P. Br.

29, she does not specifically identify or refer to any incident in

her response brief. Accordingly, the court need not address the

timeliness of any such unspecified claims, and it assumes that King

is referring to the September 2004 incident.

- 22 -

her tuition reimbursement request, the claim is dismissed for lack

of evidence to support a reasonable jury verdict in her favor.

See, e.g., Tutton v. Garland Indep. Sch. Dist., 733 F. Supp. 1113,

1117 (N.D. Tex. 1990) (Fitzwater, J.) (“Although [plaintiffs’]

failure to respond [to the motion for summary judgment] does not

permit entry of a ‘default’ summary judgment, the court is

permitted to accept the movant’s evidence as undisputed.” (citation

omitted)).

VI

King also asserts a discrimination claim based on the failure

of her manager, Mark Grainger (“Grainger”), to recommend her for a

promotion to a Loss Control supervisor position.

A

Enterprise-DFW argues that the September 2004 claim is the

only one that is timely raised,20 and that the conduct alleged in

support of that claim does not constitute an adverse employment

action because King has failed to adduce evidence demonstrating

that her employment status would have changed had she received the

recommendation. In other words, Enterprise-DFW points to the

absence of evidence that King would have been selected for the

 

 Case 3:05-cv-00026-D Document 164 Filed 07/11/07 Page 22 of 41 PageID 2651
- 23 -

position had Grainger recommended her for it. 

Enterprise-DFW argues in the alternative that King has failed

to adduce evidence that its legitimate, nondiscriminatory reason

for Grainger’s failure to recommend King for the position was

pretextual. It posits that Brian Oddy (“Oddy”), a Regional Vice

President, and not Grainger, made the decision to recommend Lance

Woodward (“Woodward”); the hiring decision was made by Todd

Burkman, a manager in another region; and Oddy’s decision was based

on a number of factors, including Woodward’s and King’s respective

performance reviews, an audit, and department head, peer, and

Branch Manager feedback. Enterprise-DFW contends that King’s

supervisor expressed concerns about her recent job performance;

that King had documented performance problems, and at one point a

Branch Manager requested a Loss Control Administrator other than

King; and that Woodward had “exceeds requirements” ratings, “very

good” production numbers, and received positive feedback from the

Branch Managers with whom he worked. Enterprise-DFW contends that

King cannot prove pretext solely by showing that she was better

qualified than Woodward, that the court should not substitute its

own business judgment in place of Oddy’s, and that King’s

subjective belief regarding her qualifications, and unsubstantiated

assertions of discrimination, are insufficient to avoid summary

judgment.

 

 Case 3:05-cv-00026-D Document 164 Filed 07/11/07 Page 23 of 41 PageID 2652
21Ostensibly concerned about her failure to exhaust, King

appears to abandon a TCHRA-based hostile work environment claim.

But she continues to refer to Title VII and § 1981 hostile work

environment claims. Each claim fails regardless whether the legal

basis is Title VII, § 1981, or the TCHRA, because King is unable to

establish a prima facie case.

- 24 -

B

King appears to abandon any independent claim based on

Grainger’s failure to recommend her for promotion in September

2004. She instead offers these allegations in the context of her

hostile work environment and retaliation claims. The court will

therefore consider them in the context of those claims, which the

court addresses below. To the extent King seeks to assert an

independent claim based on a failure to recommend her promotion,

the court dismisses the claim for lack of evidence sufficient to

enable a reasonable jury to return a verdict in her favor. See,

e.g., Tutton, 733 F. Supp. at 1117.

VII

The court now considers King’s hostile work environment

claim.21

Enterprise-DFW first posits that because none of King’s three

EEOC charges asserts a claim for hostile work environment, and the

charges are limited to complaints about unequal pay, denial of a

tuition reimbursement request, and failure to recommend for a

promotion, her hostile work environment claim must be dismissed

because it was not exhausted. It argues that because nothing in

 

 Case 3:05-cv-00026-D Document 164 Filed 07/11/07 Page 24 of 41 PageID 2653
22As noted, the same result would obtain even if the court

considered exhaustion to be “merely a prerequisite to suit.” See

supra note 9. 

23This claim need not be exhausted. See, e.g., Alpha Portland

Cement Co. v. Reese, 507 F.2d 607, 608-10 (5th Cir. 1975).

Additionally, it is limited to a race-based claim. See Bobo v.

ITT, Cont’l Baking Co., 662 F.2d 340, 343 (5th Cir. Nov. 1981)

(holding that § 1981 applies to race discrimination).

- 25 -

the charges was sufficient to put it on notice of a hostile work

environment claim, and because such a claim could not reasonably be

expected to grow out of the facts alleged in the charges, her Title

VII and TCHRA-based hostile work environment claims are not within

the subject matter jurisdiction of the court because they were not

properly exhausted. The court agrees.22 See, e.g., Hayes, 2004 WL

1283965, at *7 (holding that EEOC charge that complained of denial

of promotions, unequal pay, and race discrimination did not exhaust

hostile work environment claim; that passages on which plaintiff

relied were not like or related to claim of racially hostile work

environment; and that EEOC investigation of such claim could not

reasonably be expected to grow out of charge). Accordingly, King’s

hostile work environment claims under Title VII and the TCHRA are

dismissed. Moreover, assuming arguendo that these claims are

properly exhausted, they fail for the same reasons as does her

§ 1981-based Enterprise-DFW claim. See infra § VIII.

VIII

The court now considers King’s racially hostile work

environment claim under § 1981.23

 

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- 26 -

A

To establish a prima facie case, King must show that (1) she

belongs to a protected group, (2) she was subject to unwelcome

harassment, (3) the harassment complained of was based on race, (4)

the harassment complained of affected a term, condition, or

privilege of employment, and (5) Enterprise-DFW knew or should have

known of the harassment in question and failed to take prompt

remedial action. See Ramsey, 286 F.3d at 268. Harassment is based

on race if “the complained-of conduct had a racial character or

purpose.” Harris-Childs v. Medco Health Solutions, Inc., 2005 WL

562720, at *6 (N.D. Tex. Mar. 10, 2005) (Means, J.). Moreover,

King must demonstrate a “connection between the allegedly harassing

incidents and [her] protected status.” Id. The fifth element need

not be established if the harassment is allegedly committed by the

victim’s supervisor. Celestine v. Petroleos de Venuzuella SA, 266

F.3d 343, 353-54 (5th Cir. 2001); see also Faragher v. City of Boca

Raton, 524 U.S. 775, 807 (1998); Burlington Indus., Inc. v.

Ellerth, 524 U.S. 742, 765 (1998).

To meet the fourth element, King must demonstrate that the

harassment affected a term, condition, or privilege of employment.

“For harassment on the basis of race to affect a term, condition,

or privilege of employment . . . it must be ‘sufficiently severe or

pervasive to alter the conditions of the victim’s employment and

create an abusive working environment.’” Ramsey, 286 F.3d at 268

 

 Case 3:05-cv-00026-D Document 164 Filed 07/11/07 Page 26 of 41 PageID 2655
- 27 -

(internal quotations omitted) (quoting Harris v. Forklift Sys.,

Inc., 510 U.S. 17, 21 (1993)). Title VII prohibits “a [racially]

objectionable environment [that is] both objectively and

subjectively offensive, one that a reasonable person would find

hostile or abusive, and one that the victim in fact did perceive to

be so.” Faragher, 524 U.S. at 787 (addressing sex discrimination)

(citing Harris, 510 U.S. at 21-22); see, e.g., Felton v. Polles,

315 F.3d 470, 483-84 (5th Cir. 2002); Johnson v. Uncle Ben’s, Inc.,

965 F.2d 1363, 1372 (5th Cir. 1992) (addressing race-based

harassment). “Actionable harassment must involve ‘racially

discriminatory intimidation, ridicule[,] and insults.’” Felton,

315 F.3d at 485 (quoting Walker v. Thompson, 214 F.3d 615, 625 (5th

Cir. 2000)) (applying Title VII case law to claim brought under 42

U.S.C. §§ 1981 and 1983); see also Harris, 510 U.S. at 21. “In

determining whether a workplace constitutes a hostile work

environment, courts must consider the following circumstances: ‘the

frequency of the discriminatory conduct; its severity; whether it

is physically threatening or humiliating, or a mere offensive

utterance; and whether it unreasonably interferes with an

employee’s work performance.’” Ramsey, 286 F.3d at 268 (5th Cir.

2002) (quoting Walker, 214 F.3d at 625). Merely offensive conduct

is not actionable. Harris, 510 U.S. at 21.

 

 Case 3:05-cv-00026-D Document 164 Filed 07/11/07 Page 27 of 41 PageID 2656
24As the court notes below, King does not refer to this

evidence, much less expressly purport to rely on it, in her

response brief. Enterprise-DFW draws this evidence from the April

21, 2006 deposition of King.

- 28 -

B

Enterprise-DFW contends there is insufficient evidence of

unwelcome racial harassment, and it argues that there is no

authority to support King’s apparent contention that isolated

comments regarding a branch preference and a single email seeking

phone coverage for a receptionist (that was corrected by the Human

Resources Department) constitutes unwelcome harassment.24 It posits

that the conduct is not actionable because there is no evidence

that it was based on race; the alleged comments by one or more

Branch Managers merely reflect a reluctance to work in locations

with a high rate of repossession; and King admitted that she

subjectively interpreted these comments as having a derogatory

connotation for African-Americans, and her subjective belief alone

is insufficient. Moreover, Enterprise-DFW contends that there is

no evidence that the alleged email seeking phone coverage for the

receptionist was based on racial animus.

Enterprise-DFW also posits that King’s hostile work

environment claim fails because the complained-of treatment was not

sufficiently severe and pervasive, such that it affected a term,

condition, or privilege of her employment. Thus her allegations

that her supervisor was “rude” are insufficient. It maintains that

 

 Case 3:05-cv-00026-D Document 164 Filed 07/11/07 Page 28 of 41 PageID 2657
- 29 -

King did not complain about the alleged comments by the Branch

Managers or alleged rudeness of her supervisor, and it posits that

it corrected the perceived problem caused by the email requesting

phone coverage.

King responds that “[a]t issue in the instant case is an

ongoing culture of discrimination and retaliation against black

employees as exemplified by an organization that is rife with

discrimination at the highest levels of the company.” P. Br. 27.

She avers that “[t]he mentality and mind set exemplified by the

Defendants’ failure to even recognize and prevent discriminatory

actions which occurred is evidence of Defendants’ condoning or

encouraging such behavior by its response or lack thereof.” Id.

C

King’s vague, generalized, and conclusory allegations are

insufficient to avoid summary judgment. They are inadequate to

permit a reasonable jury to find that King was subjected to

unwelcome harassment, much less unwelcome harassment that was so

“severe and pervasive” that it altered a term or condition of her

employment.

King also asserts that Enterprise-DFW’s failure to grant her

tuition reimbursement request, and its “ongoing failure to promote”

her after she filed and mediated her EEOC charge, is evidence of a

hostile work environment. She relies on evidence that Henson was

allowed to apply for reimbursement merely by presenting an

 

 Case 3:05-cv-00026-D Document 164 Filed 07/11/07 Page 29 of 41 PageID 2658
- 30 -

application, while she was required to submit an application and

also provide a course syllabus. She also posits that Eric Lee

Seles (“Seles”), the Enterprise-DFW Operations Manager responsible

for denying tuition reimbursement, admitted that the page in the

Personal Policies and Benefits Summary to which Seles referred in

denying King’s request did not in fact set out a basis for denial.

Concerning Enterprise-DFW’s alleged “ongoing” failure to

promote her, King asserts that Grainger continued to try to find

problems with her performance after her EEOC charge was resolved.

She contends that Grainger kept a “significant events log”

concerning her, conducted an audit of her claim files while she was

out on sick leave related to her second pregnancy, and documented

her for poor performance, which he placed in her personnel file.

She also appears to rely on the principle that Title VII imposes an

affirmative duty on an employer to seek out and eradicate a hostile

work environment, and she seeks to impute liability to

Enterprise-DFW based on its employees’ conduct.

The court holds that none of these allegations, considered

alone or in combination under a “totality of the circumstances”

test, would enable a reasonable jury to find that King was

subjected to a racially hostile work environment. Even assuming

that the conduct in question qualifies as unwelcome harassment,

King has presented virtually no evidence that the conduct had a

racial character or purpose. See Harris-Childs, 2005 WL 562720, at

 

 Case 3:05-cv-00026-D Document 164 Filed 07/11/07 Page 30 of 41 PageID 2659
- 31 -

*6. Moreover, the isolated and largely conclusory allegations to

which the court refers above are inadequate to establish the kind

of “severe and pervasive” harassment sufficient to permit a

reasonable jury to find in King’s favor. King has failed to adduce

proof that would permit a reasonable finding of a “connection

between the allegedly harassing incidents and [her] protected

status.” Id.

IX

King also alleges a retaliation claim. 

A

Under the familiar burden-shifting paradigm, King must first

establish a prima facie case. This requires that she demonstrate

that (1) she engaged in a protected activity, (2) an adverse

employment action occurred, and (3) a causal link existed between

the protected activity and the adverse employment action. Walker

v. Norris Cylinder Co., 2005 WL 2278080, at *9 (N.D. Tex. Sept. 19,

2005) (Fitzwater, J.) (citing Long v. Eastfield Coll., 88 F.3d 300,

304 (5th Cir. 1996)). 

If King establishes a prima facie case, the burden shifts to

Enterprise-DFW to articulate a legitimate, nondiscriminatory reason

for the alleged retaliatory action taken. This burden is one of

production, not of persuasion. If Enterprise-DFW meets its

production burden, King must adduce evidence that would permit a

reasonable jury to find that the adverse employment action would

 

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- 32 -

not have occurred but for the protected conduct. See id. “At the

summary judgment stage, the nonmovant need only point to the

existence of a genuine issue of material fact.” Id. (quoting Gee v.

Principi, 289 F.3d 342, 345 (5th Cir. 2002) (internal quotation

marks omitted)). “The ultimate determination in an unlawful

retaliation case is whether the conduct protected . . . was a ‘but

for’ cause of the adverse employment decision.” Id. (quoting Long,

88 F.3d at 305 n.4) (internal quotation marks omitted).

“After the employer has produced evidence to rebut the

employee’s prima facie case of retaliation, the showing that the

plaintiff must make to establish causation is more onerous than

that initially required to present a prima facie case.” Phillips

v. Credit Lyonnais, 2002 WL 1575412, at *8 n.4 (N.D. Tex. July 16,

2002) (Fish, C.J.) (citing Sherrod v. Am. Airlines, Inc., 132 F.3d

1112, 1122 n.8 (5th Cir. 1998)); Long, 88 F.3d at 305 n.4).

Evidence of temporal proximity between the protected act and the

adverse employment action is alone insufficient to prove “but for”

causation.

To prevent future litigants from relying on

temporal proximity alone to establish but for

causation, we once again attempt to clarify

the issue. In Clark County School District v.

Breeden, the Supreme Court noted that cases

that accept mere temporal proximity as

sufficient evidence of causality to establish

a prima facie case uniformly hold that the

temporal proximity must be very close.

Breeden makes clear that (1) to be persuasive

evidence, temporal proximity must be very

close, and importantly (2) temporal proximity

 

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- 33 -

alone, when very close, can in some instances

establish a prima facie case of retaliation.

But we affirmatively reject the notion that

temporal proximity standing alone can be

sufficient proof of but for causation. Such a

rule would unnecessarily tie the hands of

employers.

Strong v. Univ. HealthCare Sys., L.L.C., 482 F.3d 802, 808 (5th

Cir. 2007) (addressing Title VII) (emphasis in original)

(citations, internal quotation marks, and ellipsis omitted). 

“Adverse employment actions include only ultimate employment

decisions such as hiring, granting leave, discharging, promoting,

or compensating.” The Supreme Court “has recently broadened the

meaning of actionable adverse employment action for the purposes of

Title VII retaliation claims.” Wooten v. Fed. Express Corp., 2007

WL 63609, at *16 (N.D. Tex. Jan. 9) (Fitzwater, J.) (internal

quotation marks and citations omitted) (quoting Newman v. Coll. of

Mainland, 2006 WL 3391445, at *5 (S.D. Tex. Nov. 21, 2006);

Rodriguez v. Gonzalez, 2006 WL 2844185, at *4 (S.D. Tex. Oct. 2,

2006)), appeal docketed, No. 07-10555 (5th Cir. May 18, 2007).

In [Burlington Northern & Santa Fe Railway Co.

v. White, ___ U.S. ___, 126 S.Ct. 2405

(2006),] the Court rejected the “ultimate

employment decision” standard——an exclusive

list of actions such as hiring, [g]ranting

leave, discharging, promoting and

compensating. The Court instead adopted the

broader “material adverse standard”-meaning an

action which might dissuade a reasonable

worker from making a charge of discrimination

or sexual harassment. The Fifth Circuit has

not had occasion to address whether this new

broader standard of adverse employment action

in Title VII retaliation claims will also

 

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- 34 -

apply to § 1983 retaliation claims.

Wooten, 2007 WL 63609, at *17 (quoting Rodriguez, 2006 WL 2844185,

at *4 (citations omitted)). 

Nor has the Fifth Circuit as yet explicitly

applied Burlington to a § 1981-based

retaliation claim. Because such claims are

generally analyzed under the same framework as

are Title VII claims, and because § 1981 does

not contain the language that prompted the

Fifth Circuit to give the Title VII antiretaliation clause a narrower reading in the

first place, the court will apply Burlington’s

more expansive standard. The court will deem

to be an adverse employment action for

purposes of § 1981-based retaliation any

action that a reasonable employee would have

found to be materially adverse, that is, one

that might have dissuaded a reasonable worker

from making or supporting a charge of

discrimination.

Id. (citing Burlington, 126 S. Ct. at 2415).

B

Enterprise-DFW first posits that some of the discrete

retaliatory acts on which King relies are barred for purposes of

Title VII and the TCHRA because they occurred more than 300 days

before she filed her February 1, 2005 EEOC charge. It maintains

that the alleged retaliatory acts include (1) her April 2003

evaluation, (2) Grainger’s failure to assign her “dead files” to

another employee in January 2004, and (3) Yaguchi’s alleged failure

to hire or allow King to apply for a position as

 

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25King does not, however, purport to rely on, or adduce

evidence in support of, these acts.

- 35 -

Diversity/Multi-Cultural Relations Manager in 2003.25

Enterprise-DFW next argues that King has not established that

she suffered any adverse employment action in the retaliation

context. It posits that there is no evidence that any of its

actions would deter a reasonable person from making a

discrimination charge. Specifically, it maintains that taking

employees on an outing without calling King (who was on maternity

leave at the time), failing to advise her of a job posting while

she was on maternity leave (for which she was able to apply on her

return from work), rating her as “meets expectations” on

evaluations, giving her a memorandum documenting performance

problems, failing to recommend her for a particular promotional

opportunity (over which her supervisor did not have decisionmaking

authority), and failing to transfer certain files from King to

another employee, even if true, are insufficient to produce the

type of harm that the anti-retaliation provisions are intended to

prevent.

Enterprise-DFW also argues that King has failed adequately to

allege a “constructive discharge” because, to the extent she makes

such a claim, the evidence shows that a reasonable employee in her

position would not have felt compelled to resign. It posits that

it is undisputed that King was neither demoted, reassigned to

 

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- 36 -

menial or degrading work, or subjected to badgering or harassment,

nor did she receive an offer of early retirement that would have

made her worse off or suffer a reduction in salary or job

responsibilities. 

Enterprise-DFW also contends that King’s deposition testimony

shows the absence of evidence to support the existence of a causal

link between the alleged protected activity and the alleged

retaliatory actions. It posits that King confirmed that no

Enterprise-DFW employee discouraged her from filing an EEOC charge

or expressed dissatisfaction over the filing. Moreover,

Enterprise-DFW maintains that King admitted that she could not

recall facts in support of her contention that Grainger’s actions

were causally connected to her EEOC charge, and that she knew of no

facts in support of her retaliation claim insofar as it related to

Yaguchi. According to Enterprise-DFW, King testified that after

her filing with the EEOC, she was not recommended for any other

position with the company, but she also testified that it was

simply her subjective belief that Yaguchi was involved.

Enterprise-DFW also asserts that it has articulated a legitimate,

nondiscriminatory reason for its alleged actions, points to the

absence of evidence of pretext, and argues that King has failed to

adduce any evidence from which a reasonable jury could find

retaliation.

King responds that her allegations regarding Enterprise-DFW’s

 

 Case 3:05-cv-00026-D Document 164 Filed 07/11/07 Page 36 of 41 PageID 2665
26King does not respond to Enterprise-DFW’s arguments

concerning constructive discharge, and the court concludes that she

has failed to establish that a reasonable jury could find that she

was constructively discharged.

27King also suggests that while she was required to supplement

her application, Henson was not. Taken alone, this does not rise

to the level of a retaliatory action, even under the definition

adopted in Burlington, 126 S.Ct. at 2411.

- 37 -

denial of her tuition reimbursement request and failure to

recommend her for promotion subsequent to the filing and mediation

of her June 27, 2003 EEOC charge constitute proof of retaliation.

She makes several other assertions that appear to be offered to

support her retaliation claim.26 But King’s evidence is no more

sufficient in the retaliation context than it is in the context of

the hostile work environment claim that the court has rejected

above. At a minimum, King has failed to adduce evidence that would

permit a reasonable jury to find a causal connection between a

protected activity and an adverse employment action.

C 

Assuming arguendo that Enterprise-DFW’s alleged denial of her

tuition reimbursement request is sufficient to state a prima facie

case of retaliation, Enterprise-DFW has articulated a legitimate,

nondiscriminatory reason for doing so: that the courses were

related to an advanced degree and not directly related to her job

duties. King has offered virtually no evidence that this reason

was pretextual.27 

To the extent King may be attempting to rely on the Seles

 

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28To the extent King is implicitly suggesting that causation

is established based on the temporal proximity between the filing

of her initial EEOC charge in October 2003 and the denial of

reimbursement in November 2003, temporal proximity alone is not

sufficient in this case to raise a genuine issue of material fact.

See Strong, 482 F.3d at 808.

- 38 -

deposition to prove pretext, this evidence is insufficient to

enable a reasonable jury to find that reasons for denying King

reimbursement were pretextual. At most, the Seles deposition shows

Seles’ admission that the courses in “Management and Organization,”

“Decision Making Tools and Techniques,” and “Global Business” could

be seen as generally relevant to any employee’s job duties. This

does not undercut Seles’ conclusion that these courses were not

“directly related” to King’s job duties. Moreover, the cited

portion of the Seles deposition does not undermine Enterprise-DFW’s

other articulated basis for denying her request: that tuition

reimbursement is generally not granted for advanced degree courses.

And King has adduced almost no proof of a causal link between her

filing the EEOC charge and the subsequent denial of her tuition

reimbursement request.28

Similarly, Enterprise-DFW’s alleged failure to recommend King

for a promotion in September 2004 is insufficient to establish

retaliation, because even assuming that King has established a

prima face case, she offers almost no evidence that

Enterprise-DFW’s legitimate, nondiscriminatory reasons for

recommending and hiring Woodward were pretextual. King appears to

 

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29The additional allegations that King offers are conclusory

or not probative of pretext.

- 39 -

argue that Enterprise-DFW’s contention that Grainger did not

recommend her because of her poor performance is a pretext for

race- or sex-based discrimination, because Grainger was himself

identified in her initial EEOC charge as having discriminated

against her. But this is insufficient of itself to enable a

reasonable jury to find pretext.29 Moreover, King offers virtually

no proof that Enterprise-DFW’s failure to recommend her for

promotion is causally connected to her filing the EEOC charge.

Accordingly, the court grants Enterprise-DFW’s motion for

summary judgment on King’s retaliation claim.

X

King also alleges a breach of contract claim related to the

August 6, 2003 Agreement. She avers that under the terms of the

Agreement, Enterprise-DFW was prohibited from discriminating or

retaliating against her as a result of her filing an EEOC charge.

Enterprise-DFW argues that the conduct on which King relies to

support her breach of contract claim is the same as that alleged to

establish her discrimination and retaliation claims, and that the

contract claim fails for the same reasons. In her response brief,

King relies solely on a retaliation theory of breach of contract.

She relies only on the contention that, after she settled her wage

claim, she was never again promoted or recommended for promotion.

 

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30Moreover, King offers no basis for the court to conclude that

the contract claim does not stand or fall on the same reasoning.

- 40 -

She relies on the same evidence here as she does in the context of

her Title VII and § 1981 retaliation claims.

Enterprise-DFW has demonstrated that King’s breach of contract

claim is essentially a contractual overlay on, and duplicative of,

her retaliation claim. Because the court holds that Enterprise-DFW

is entitled to summary judgment dismissing that claim on the

merits, and since King does not rely on other evidence or discrete

claims to prevail on a breach of contract claim, the court

concludes that Enterprise-DFW is entitled to dismissal of her

breach of contract claim as well.30

XI

Defendants Enterprise Company and Enterprise-Texas move for

summary judgment on the same grounds as does Enterprise-DFW. They

also seek summary judgment on the ground that they were never

King’s employer and cannot be held liable under the special

circumstances that render a non-employer liable. Because the court

holds that Enterprise Company and Enterprise-Texas are entitled to

summary judgment for the same reasons as is Enterprise-DFW, it need

not address the additional grounds on which Enterprise Company and

Enterprise-Texas rely.

 

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- 41 -

* * *

For the reasons explained, defendants’ September 1, 2006

motions for summary judgment are granted, and King’s suit is

dismissed with prejudice by judgment filed today.

SO ORDERED.

July 11, 2007.

_________________________________

SIDNEY A. FITZWATER

UNITED STATES DISTRICT JUDGE

 

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