IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

__________________________________

NEELY L. BLACKMAN, SR., *

*

Plaintiff, *

 *

v. * Civil No. 3:04-CV-2456-H

 *

CITY OF DALLAS, *

 *

Defendant. *

MEMORANDUM OPINION AND ORDER

Before the Court are Defendant City of Dallas’s Motion for Summary Judgment, and

supporting brief and appendix, filed September 19, 2005; Plaintiff’s Amended Response and

Amended Appendix, filed November 3, 2005; Plaintiff’s Brief in Support of Plaintiff’s Response,

filed November 3, 2005; Defendant’s Reply Brief, filed November 17, 2005; Defendant’s Motion

to Strike Plaintiff’s Summary Judgment Evidence, and supporting brief, filed November 17, 2005;

and Plaintiff’s Supplemental Response and Appendix, filed December 5, 2005. 

For the reasons that follow, Defendant’s motion for summary judgment is granted in its

entirety. 

I. Background

Plaintiff pro se Neely L. Blackman, Sr., is an African-American man who has been an

employee of the City of Dallas since 1990. During his tenure, Blackman asserts he has been passed

over for promotion twelve times. In the years relevant to this lawsuit, he worked as a City of Dallas

code inspector. Blackman asserts that his failure to be promoted from that position is the result of

racial discrimination, and also the result of unlawful retaliation against him for complaining of

discrimination, for filing internal grievances, and for filing a prior discrimination lawsuit against the

 

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 Blackman v. City of Dallas, Civ. No. 3:00-CV-0075-P (N.D. Tex.). In that case,

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summary judgment was awarded to the City of Dallas on a variety of grounds, including lack of

evidence of discriminatory intent. See Blackman v. City of Dallas, 2001 WL 182752 (N.D. Tex.

2001) (Solis, J.), aff’d 33 Fed. Appx. 704 (5th Cir. 2002), cert. denied, 540 U.S. 810 (2003).

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City. Defendant City of Dallas answers that the promotion process is race-neutral, and that better1

qualified applicants have been promoted in Blackman’s stead.

On November 15, 2004, Plaintiff filed this case for disparate treatment and retaliation under

Title VII of the Civil Rights Act of 1964, as amended, and under Section 1981, Chapter 42, United

States Code. See 42 U.S.C. § 2000e et seq. [“Title VII”]; 42 U.S.C. § 1981 [“Section 1981"].

Defendant City of Dallas now moves for summary judgment on all of Plaintiff’s claims.

II. Summary Judgment Standard

Summary judgment is appropriate when the facts and law as represented in the pleadings,

affidavits and other summary judgment evidence show that no reasonable jury could find for the

nonmoving party as to any material fact. FED.R.CIV. P. 56; Lujan v. National Wildlife Federation,

497 U.S. 871, 888 (1990); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251 (1986); Celotex Corp.

v. Catrett, 477 U.S. 317, 323-25 (1986); Innovative Database Systs. v. Morales, 990 F.2d 217 (5th

Cir. 1993). The moving party bears the initial burden of identifying those portions of the pleadings

and discovery in the record that demonstrate the absence of a genuine issue of material fact, but “is

not required to negate elements of the nonmoving party’s case.” Lynch Properties, Inc. v. Potomac

Ins. Co. of Ill., 140 F.3d 622, 625 (5th Cir. 1998) (citing Celotex, 477 U.S. at 322-25). If the movant

fails to meet its initial burden, the motion must be denied, regardless of the nonmovant’s response.

Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). 

If the movant does meet its burden, the nonmovant must go beyond the pleadings and

designate specific facts showing that a genuine issue of material fact exists for trial. Matsushita

 

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Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Edwards v. Your Credit, Inc., 148

F.3d 427, 431 (5th Cir. 1998). A party opposing summary judgment may not rest on mere

conclusory allegations or denials in its pleadings unsupported by specific facts presented in affidavits

opposing the motion for summary judgment. FED. R. CIV. P. 56(e); Lujan, 497 U.S. at 888;

Hightower v. Texas Hosp. Assn., 65 F.3d 443, 447 (5th Cir. 1995). 

In determining whether genuine issues of fact exist, factual controversies are construed in the

light most favorable to the nonmovant, but “only if both parties have introduced evidence showing

that a controversy exists.” Lynch, 140 F.3d at 625; see also Eastman Kodak v. Image Technical

Servs., 504 U.S. 451 (1992). In the absence of any proof, the Court will not assume that the

nonmoving party could or would prove the necessary facts. Lynch, 140 F.3d at 625. A party must

do more than show some “metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 586.

If the record, taken as a whole, could not lead a rational trier of fact to find for the nonmoving party,

there is no genuine issue for trial. Friou v. Phillips Petroleum Co., 948 F.2d 972, 974 (5th Cir.

1991).

With this standard in mind, the Court turns to an analysis of the present motion.

III. Analysis

In Plaintiff’s First Amended Complaint, filed March 30, 2005, the following five causes of

action are asserted against the City of Dallas: (1) Title VII racial discrimination and retaliation for

failure to promote Plaintiff to Administrator of the Urban Rehabilitation Standard Board [“URSB”]

[“First Claim”]; (2) Section 1981 racial discrimination and retaliation for failure to promote Plaintiff

to URSB Administrator [“Second Claim”]; (3) Section 1981 racial discrimination and retaliation for

failure to promote Plaintiff to District Manager [“Third Claim”]; (4) Title VII racial discrimination

and retaliation for failure to promote Plaintiff to District Interim Manager, and for involuntary

 

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reassignment to another district [“Fourth Claim”]; and (5) Title VII retaliation for involuntary

transfer to the URSB Structural Team [“Fifth Claim”]. The Court will address the claims in order.

A. First Claim

With regard to the First Claim, brought under Title VII, the City argues as a preliminary

matter that Plaintiff has neither alleged receipt of nor produced in discovery the required right-to-sue

letter from the Equal Employment OpportunityCommission [“EEOC”]; and that the lawsuit should

be dismissed as untimely. See Taylor v. Books A Million, Inc., 296 F.3d 376, 378 (5th Cir. 2002),

cert. denied, 537 U.S. 1200 (2003). In the subsequently filed appendix, however, Plaintiff provides

the EEOC letter, with a mailing date of Thursday, August 12, 2004. Filed Monday, November 15,

2004, this lawsuit was initiated within the 90-day limit and is thus timely. See Franklin v.

Burlington No. and Santa Fe Ry. Co., 2001 WL 1143145, *2 (N.D. Tex. 2001) (applying three-day

presumption of receipt of EEOC letters), aff’d, 34 Fed. Appx. 963 (5th Cir. 2002); see also Taylor,

296 F.3d at 378 (adopting “presumption of receipt” rule); FED. R. CIV. P. 6(a) (allowing extension

to Monday following weekend statutory limitation date).

Upon examination of the merits of Plaintiff’s First Claim the Court concludes, however, that

the claim though timely filed should not proceed to trial. To overcome a motion for summary

judgment on a Title VII discrimination claim, the plaintiff must first establish, by a preponderance

of the evidence, a prima facie case of discrimination. McDonnell Douglas Corp. v. Green, 411 U.S.

792, 802-04 (1973); Haynes v. Pennzoil Co., 207 F.3d 296, 300 (5th Cir. 2000); Shackelford v.

Deloitte & Touche, 190 F.3d 398, 404 (5th Cir. 1999). A prima facie case of discrimination in a

“failure to promote” case consists of four elements: (1) the employee is a member of the protected

class; (2) he sought and was qualified for the position; (3) he was rejected for the position; (4) and

the employer continued to seek applicants with the plaintiff's qualifications. Celestine v. Petroleos

 

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de Venezuella, S.A., 266 F.3d 343, 354 -355 (5th Cir. 2001). Once established, the prima facie case

raises an inference of intentional discrimination, and the burden of production shifts to the defendant

to articulate a legitimate, nondiscriminatory reason for its actions. Id. If the defendant satisfies this

burden, the plaintiff must prove that the proffered reasons are pretextual. Id.

In this case, Plaintiff has met his prima facie burden. He alleges that he is an AfricanAmerican; that he sought and was qualified for the position of URSB Administrator; and that a

Caucasian man named Kinsworthy was selected instead. Defendant, in turn, has produced evidence

that Kinsworthy was better qualified for the position. Because Defendant has met his burden of

production, it falls to Plaintiff to prove that the City’s hiring rationale is a pretext for discrimination.

Celestine, 266 F.3d at 355. This Plaintiff cannot do.

Once a Title VII claim reaches the pretext stage, “the only question on summary judgment

is whether there is a conflict in substantial evidence to create a jury question regarding

discrimination.” Haynes, 207 F.3d at 300. Where the pretext claimed is for promotion based on

relative qualifications, a plaintiff may survive summary judgment and take his case to the jury by

providing evidence that he was “clearly better qualified” than the employee selected for the position

at issue. Id. at 357 (citing Walther v. Lone Star Gas Co., 952 F.2d 119, 123 (5th Cir. 1992)). The

single question for the trier of fact is whetherthe employer's preference of another applicant over the

plaintiff was motivated by discrimination. Id. Evidence of the plaintiff's superior qualification is

therefore probative of pretext. Deines v. Texas Dept. of Prot. & Regulatory Servs., 164 F.3d 277,

281 (5th Cir. 1999). The “bar is set high” for this kind of evidence, however, because differences

in qualifications are generally not probative evidence of discrimination unless those disparities are

“of such weight and significance that no reasonable person, in the exercise of impartial judgment,

could have chosen the candidate selected over the plaintiff for the job in question.” Celestine, 266

 

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 One of the many bald allegations in Plaintiff’s First Amended Complaint is that the 2

City places non-African-Americans in “interim” management positions to generate management

experience, which then propels them into permanent management positions over AfricanAmerican employees as better qualified. After a full review of the record, the Court finds no

shred of admissible, non-conclusory evidence supporting that allegation. See Grimes v. Texas

Dept. of Mental Health and Mental Retardation, 102 F.3d 137, 139-40 (5th Cir. 1996)

(disallowing unsupported speculation). Plaintiff conceded in the prior case, moreover, that at

least one African-American has been appointed to such an interim managerial position. See

Blackman, order at 10 n.3.

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F.3d at 357 (quoting Deines, 164 F.3d at 280-81); see Ash v. Tyson Foods, Inc., --- U.S. ---, 126 S.

Ct. 1195, 1197-98 (2006) (approving similar language as the appropriate standard, while rejecting

a requirement that superior qualifications “jump off the page”).

In this case, after a full review of the record, the Court is of the view that no reasonable juror

could find Plaintiff better qualified, or even as qualified, as Kinsworthy for the position of URSB

Administrator. Kinsworthy had more than thirteen years of City supervisory experience, four of

them directly applicable to the position at issue. See Def. Appx. at 31-32, 61-63. Plaintiff, in

contrast, had only a few months of relevant management experience in his career. Def. Appx. at 11-

12; see also Plf. Amnd. Appx., Exh. 11 (Blackman performance review); id. Exhs. 12, 13

(unsuccessful appeal of performance review). The gross disparity in relevant experience alone is

dispositive of the issue. In the absence of evidence that Plaintiff is clearly better qualified than 2

Kinsworthy for the position, the Court declines to challenge the business judgment of the City in its

staffing decisions. See Deines, 164 F.3d at 281 (applying the businessjudgment rule in the Title VII

context) (citing Mayberry v. Vought Aircraft Co., 55 F.3d 1086, 1091 (5th Cir. 1995)); see also

Walton v. Bisco Indus., Inc., 119 F.3d 368, 372 (5th Cir. 1997) (“[D]iscrimination laws [are not]

vehicles for judicial second-guessing of business decisions.”). The record as a whole contains no

glimmer of evidence from which the Court can reasonably infer unlawful motivation. With regard

to the racial discrimination portion of the First Claim, Plaintiff’s cause of action fails. See id.

 

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The retaliation portion of the First Claim fares no better. To establish a prima facie case of

retaliation, a Title VII plaintiff must show (1) that he engaged in an activity protected by the state;

(2) that an adverse employment action occurred; and (3) that a causal link connects the protected

activity and the adverse employment action. Manning v. Chevron Chem. Co., 332 F.3d 874, 883 (5th

Cir. 2003), cert. denied, 540 U.S. 1107 (2004). Defendant tacitly concedes the first two elements

but challenges the existence of a “causal link.”

With regard to the “causal link,” a plaintiff need not prove that the alleged protected activity

was the “sole factor motivating the employer's challenged decision.” Long v. Eastfield Coll., 88 F.3d

300, 305 n. 4 (5th Cir. 1996). Some evidence must be presented, however, from which the district

court can infer the required causation. See id.

In this case, no evidence is directly supportive. Instead, Plaintiff relies solely on an inference

of causation from the temporal proximity of his discrimination complaints to the denial of

promotion. For purposes of summary judgment, close timing between an employee’s protected

activity and an adverse action may indeed be sufficient to establish a prima facie case of retaliation.

Swanson v. General Servs. Admin., 110 F.3d 1180, 1188 (5th Cir. 1997). Here, the alleged

retaliatory conduct that forms the basis of the First Claim (failure to promote to URSB

Administrator) occurred on or about January 15, 2003. See EEOC Charge, Def. Appx. at 58.

Plaintiff concedes that the internal grievance at issue occurred in 1999, three or more years before

the alleged retaliation. See Plf. Amnd. Resp. at 5. The prior EEOC charges filed by Plaintiff

occurred in 1999 and 2000, two to three years before the promotion denial. See Def. Appx. at 58.

The remaining instances of protected conduct related to the First Claim involve Blackman’s prior

federal lawsuit, and are (1) the filing of that lawsuit (January 13, 2000); (2) appeal of its dismissal

(May 24, 2001); and (3) filing of a petition for certiorari to the United States Supreme Court (July

 

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11, 2002). See Court’s Docket, Blackman, No. 3:00-CV-0075-P. Those acts occurred three years,

twenty months, and six months, respectively, before the alleged retaliation. Plaintiff cites no case

in which a time lag of six-months or longer is deemed to generate an inference of retaliation by

temporal proximity alone. Cf. Handzlik v. United States, 93 Fed. Appx. 15, 19 (5th Cir. 2004)

(holding two months’ time between a protected activity and adverse employment action to be enough

to raise an inference of prima facie causation); Evans v. City of Houston, 246 F.3d 344, 354 (5th Cir.

2001) (“[A] time lapse of up to four months has been found sufficient to satisfy the causal

connection for summary judgment purposes.”); Douglas v. Mortenson Broadcasting Co., 2005 WL

2778538, *3 (N.D. Tex. 2005) (Sanders, J.) (holding a two-month lapse to be probative in the

presence of other evidence of causation). Having failed to establish a causal connection between his

protected conduct and the allegedly retaliatory event, Plaintiff does not state a prima facie case of

retaliation under Title VII.

It is clear to the Court that Plaintiff sincerely believes himself to have been the victim of

discrimination and retaliation. In the absence of supporting evidence, however, a belief, no matter

how sincere, is not enough to carry a federal lawsuit to trial. Grimes v. Texas Dept. of Mental Health

and Mental Retardation, 102 F.3d 137, 139-40 (5th Cir. 1996)(“[U]nsubstantiated assertions are not

competent summary judgment evidence.”); Douglass v. United Servs. Automobile Assoc., 79 F.3d

1415, 1429 (5th Cir. 1996) (en banc) (“[C]onclusory allegations, speculation, and unsubstantiated

assertions are inadequate to satisfy the nonmovant's burden.”); Krim v. BancTexas Group, Inc., 989

F.2d 1435, 1449 (5th Cir. 1993) (“Summary judgment, to be sure, may be appropriate, even in cases

where elusive concepts such as motive or intent are at issue . . . if the nonmoving party rests merely

upon conclusory allegations, improbable inferences, and unsupported speculation.”). Accordingly,

the First Claim must be dismissed in its entirety.

 

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B. Second & Third Claims

Plaintiff’s Second and Third Claims are brought against the City under Section 1981 of

Chapter 42, United States Code [“Section 1981"]. See Amnd Compl. at 5-9. That statute does not

support a cause of action for violation by a state actor of an individual plaintiff’s rights. Felton v.

Polles, 315 F.3d 470, 482 (5th Cir. 2002); Jackson v. Dallas Indep. Sch. Dist., 1999 WL 58846, *2-3

(N.D. Tex. 1998 (Fitzwater, J.) (dismissing Section 1981 claims sua sponte). Moreover, Plaintiff

pro se was put on express notice of controlling law by the ruling in his prior discrimination case in

the Northern District. E.g., Blackman, 2001 WL 182752, at *4 (dismissing Blackman’s Section

1981 claims against the City of Dallas). Accordingly, the Second and Third Claims, brought

improperly against the City under Section 1981, are dismissed.

C. Fourth & Fifth Claims

With regard to Plaintiff’s Fourth and Fifth Claims, Defendant asserts that because they are

not a part of Plaintiff’s EEOC Charge, they must be dismissed for failure to exhaust administrative

remedies. The Court agrees.

Compliance with the administrative review process provided by Title VII is a prerequisite

for judicial review of a discrimination claim. Ray v. Freeman, 626 F.2d 439, 442 (5th Cir. 1980);

see Messer v. Meno, 130 F.3d 130, 134 (5th Cir. 1997), cert. denied, 525 U.S. 1067 (1999). The

scope of a Title VII complaint is limited to the scope of the EEOC investigation that can reasonably

be expected to grow out of the charge of discrimination filed with that agency. Thomas v. Texas

Dept. of Crim. Justice, 220 F.3d 389, 395 (5th Cir. 2000) (citing Sanchez v. Standard Brands, 431

F.2d 455, 466 (5th Cir. 1970)). The crucial element of a charge of discrimination is the factual

statement contained therein. Sanchez v. Standard Brands, Inc., 431 F.2d 455, 462 (5th Cir. 1970).

The central purposes of the charge are to invoke the EEOC’s investigative and conciliatory

 

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machinery, and to put the employer on notice of the existence and nature of the charges. Manning

v. Chevron Chem. Co., 332 F.3d 874, 878-89 (5th Cir. 2003).

In this case, Plaintiff’s EEOC Charge, submitted October 10, 2003, alleges the following

factual statement of harm: “On January 15, 2003, I found out that I was not selected for a promotion

to Manager, URSB Board.” Def. Appx. at 58. The “discrimination statement” alleges Title VII

retaliation for filing previous EEOC charges, in or around 1999-2000, and also for making internal

complaints with the City. Id. The allegation addressed directly in the Charge is Plaintiff’s First

Claim here. Plaintiff’s Fourth and Fifth Claims, in contrast, are based on events that occurred in

February 2005, more than two years after the events alleged in the Charge. Both of these claims,

moreover, involve different people and different positions. The Fourth Claim alleges the

discriminatory appointment over Plaintiff of James McKissick as interim district manager, and

Blackman’s transfer to another district. See Compl. at 9-10. The Fifth Claim does not allege a

failure to promote at all, but rather involves Plaintiff’s involuntary reassignment to the URSB

Structural Team. See id at 10-11. Factually unrelated, the Fourth and Fifth Claims thus cannot be

said to “grow out of” an EEOC investigation into the discrete event of the URSB Administrator

application and appointment process. Thomas, 220 F.3d at 395.

It is undisputed that the EEOC Charge was never amended or supplemented; nor a new

charge filed. Plaintiff argues that amendment orsupplementation was not required because the facts

here support a “continuing violation” for which his Charge gave sufficient notice. See Huckabay v.

Moore, 142 F.3d 233, 238-40 (5th Cir. 1998). That argument fails here for the same reason that the

same argument failed in Plaintiff’s prior lawsuit against the City. An employer’s failure to promote

an employee is a discrete event that “cannot constitute a continuing violation under prevailing

precedent.” Blackman v. City of Dallas, 2001 WL 182752, *2 (N.D. Tex. 2001) (Solis, J.)

 

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 Although the Court does not reach a discussion of the merits of Plaintiff’s Second, 3

Third, Fourth and Fifth Claims, the record as a whole, as for the First Claim, raises no issue of

material fact. See Grimes, 102 F.3d at 139-40 (holding unsupported subjective belief and

conclusory statements not to fulfill a summary judgment nonmovant’s burden).

11

(dismissing discrete unrelated prior claims as time-barred), aff’d 33 Fed. Appx. 704 (5th Cir. 2002),

cert. denied, 540 U.S. 810 (2003); see, e.g., Huckabay, 142 F.3d at 240. Accordingly, the factual

allegation in Plaintiff’s EEOC Charge in this case – “I was not selected for a promotion to Manager,

URSB Board” -- does not support a continuing violation theory on which the EEOC might base an

investigation into the later claims.

Accordingly, Plaintiff has failed to exhaust his administrative remedies with regard to the

Fourth and Fifth Claims brought under Title VII. See Messer v. Meno, 130 F.3d 130 at 134; Ray v.

Freeman, 626 F.2d at 442. They are therefore dismissed.3

D. Contract Claims

Peppered throughout Plaintiff’s Complaint are references to the City’s breach of Plaintiff’s

employment contract, and interference with the same. Plaintiff does not, however, meet his

evidentiary burden of coming forward with evidence of an applicable contract or its terms. See

Matsushita Elec. Indus. Co., 475 U.S. at 587 (setting out a nonmovant’s summary judgment

evidentiary burden); Lewis v. Bank of America N.A., 343 F.3d 540, 545 (5th Cir. 2003) (setting out

the elements of breach of contract under Texas law), cert. denied, 540 U.S. 1213 (2004); Thrift v.

Estate of Hubbard, 44 F.3d 348, 356 (5th Cir. 1995) (setting out the elements of tortious interference

with contract). These claims, to the extent they were intended to be alleged, are therefore dismissed.

IV. Conclusion

For each of Plaintiff’s five causes of action, the record taken as a whole reveals no genuine

issue of material fact, and/or Defendant City of Dallas is entitled to judgment as a matter of law. See

FED. R. CIV. P. 56. Defendant’s motion for summary judgment is therefore GRANTED.

 

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Because the Court has not considered inadmissible evidence, Defendant’s Motion to Strike

Summary Judgment Evidence is MOOT. Final Judgment will issue by separate order.

SO ORDERED.

DATED: July 3, 2006.

___________________________________

BAREFOOT SANDERS, SENIOR JUDGE

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

 

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