1

The court recounts the evidence favorably to Ramirez as the summary judgment nonmovant

and draws all reasonable inferences in his favor. See, e.g., Clift v. Clift, 210 F.3d 268, 270 (5th Cir.

2000).

 IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

RIGOBERTO RAMIREZ, §

 §

Plaintiff, §

 § Civil Action No. 3:03-CV-2625-D

VS. §

 §

UNIVERSITY OF TEXAS §

SOUTHWESTERN MEDICAL CENTER, §

 §

Defendant. §

MEMORANDUM OPINION

 AND ORDER 

Plaintiff Rigoberto Ramirez (“Ramirez”) sues defendant University of Texas Southwestern

Medical Center of Dallas (“UT-Southwestern”) under Title VII of the Civil Rights Act of 1964

(“Title VII”), 42 U.S.C. § 2000e et seq., alleging that it discriminated against him based on his

Hispanic race by denying him promotions and other employment benefits, and that it retaliated

against him by terminating his employment after he complained of retaliation and discrimination.

UT-Southwestern moves for summary judgment. For the reasons that follow, the court grants the

motion in part and denies it in part.

I

Ramirez began his employment with UT-Southwestern in 1995 as a maintenance worker,1

and in 1997 he became the Building Utility Operator. In 2000 he filed internal complaints with the

Office of Equal Opportunity and Minority Affairs, asserting that he had been denied several

promotions based on his Hispanic race: once to Acting Physical Plaint Foreman III, and twice to

 

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permanent Foreman. Ramirez alleges that UT-Southwestern twice told him that it had lost his

applications for promotions, which required that he resubmit them, that he had more experience and

seniority than the individuals whom UT-Southwestern promoted to Foreman, and that, after he

reported allegations of race discrimination, UT-Southwestern did not investigate his complaints.

He also avers that his supervisors retaliated against him for complaining of discrimination by

suspending him without pay. Ramirez maintains that they based the suspension on his failure to

show up for work, but that he had been approved for vacation time on the days in question. He also

complains that he was forced to file an appeal to overturn the suspension. In 2001 Ramirez

unsuccessfully sought another promotion to the Foreman position. A person who had less seniority,

and whom Ramirez had trained, was given the job.

In 2002 he again applied for two openings for the job of Foreman. At the time, he was the

most experienced and the senior applicant, and he believed he was next in line for promotion. His

supervisor, Ulysses Johnson (“Johnson”), the Superintendent of Utilities, advised him that UTSouthwestern had decided to eliminate the Foreman positions. 

Later in 2002 Ramirez requested in writing that he be included in UT-Southwestern’s

apprenticeship program and requested cross-training in the Controls Shop, but no one responded to

the requests. He also requested a computer ID and password so that he could use the computer

resources at UT-Southwestern, as did other employees and students, but he did not receive a

response.

On October 9, 2002 Ramirez drafted a request on behalf of second- and third-shift

maintenance workers that they be paid shift-pay differential, a form of compensation given to

qualified employees for inconvenience experienced in working hours other than the regularly-

 

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scheduled daytime shift. Ramirez and the five workers in question—who were either Hispanic or

African-American—signed the letter, which was sent to John A. Roan (“Roan”), Executive Vice

President for Business Affairs. After they did so, Johnson reprimanded them in writing for failing

to follow the chain of command.

Ramirez responded to the reprimand by writing an October 31, 2002 letter to Kirby Vahle

(“Vahle”), Vice President of Facilities Management, in which he demanded that Johnson’s letter be

removed from his personnel file. That same day, Johnson provided Ramirez a letter that

recommended he be terminated for using inappropriate language earlier that month, being

unavailable for work because Ramirez was sitting in his car two minutes before his shift ended, and

failing to follow procedures when he told another employee that he could leave work early on

October 22, 2002. Ramirez denied the allegations in his written response, but Johnson discharged

him on November 1 based on the grounds set out in the letter.

Ramirez filed formal complaints of discrimination based on the denial of his requests for

apprenticeship, cross-training, and use of computer resources, and he appealed his termination.

Vahle upheld the decision to terminate Ramirez’s employment. Ramirez then sought further review

from Roan, who also upheld the discharge. Vahle also advised Ramirez that he could not grieve the

issue of shift-pay differential because he was no longer an employee. Although UT-Southwestern

has a policy of progressive discipline, Vahle testified in his deposition that it was not used because

Ramirez had a history of disruptive conduct, including incidents in 1996, 1999, and 2000.

Vahle disagreed with Johnson’s decision to reprimand the employees for requesting shift

pay, and he testified that he did not recall any other employee’s being reprimand or another

employee’s requesting that the reprimand be removed from his personnel file. Before Ramirez was

 

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2

See D. Br. at 13 (citing two promotions as included in conduct that would be time-barred).

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discharged, Vahle met with the employees who signed the letter, and he advised them they should

not have been reprimanded. 

Ramirez filed a charge of discrimination with the Equal Employment Opportunity

Commission (“EEOC”), after which he initiated this lawsuit. UT-Southwestern moves for summary

judgment. In his response to the motion, Ramirez asserts that he is entitled to recover under Title

VII on three grounds: he was terminated in retaliation for complaining about retaliation against, and

harassment of, minority employees; he was denied promotions to the position of Foreman because

of his Hispanic race; and he was denied cross-training and computer access because of his race.

UT-Southwestern argues as a threshold matter that Ramirez cannot recover for any conduct

that occurred before April 10, 2002, which is 300 days before he signed the charge of discrimination

that he filed with the EEOC. It posits that it is entitled to summary judgment dismissing all of

Ramirez’s claims on the merits.

II

The court considers first whether Ramirez can recover based on conduct—principally,

denials of promotions2

—that occurred before April 10, 2002. UT-Southwestern contends he cannot,

because Title VII imposes a 300-day limitation period, and that this bars him from recovering based

on the denials of promotions to the job of Foreman in 1999 and 2001. Ramirez responds that his

claims are not barred because he can establish a continuing violation.

“Although there is no definitive standard for what constitutes a continuing violation, the

plaintiff seeking to invoke this doctrine must demonstrate more than a series of discrete

discriminatory acts[.]” Celestine v. Petroleos de Venezuella SA, 266 F.3d 343, 352 (5th Cir. 2001).

 

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“‘He must show an organized scheme leading to and including a present violation, such that it is the

cumulative effect of the discriminatory practice, rather than any discrete occurrence, that gives rise

to the cause of action.’” Id. (quoting Huckabay v. Moore, 142 F.3d 233, 239 (5th Cir. 1998)). “[A]

one-time employment event, including the failure to . . . promote, . . . is ‘the sort of discrete and

salient event that should put the employee on notice that a cause of action has accrued.’” Id.

(quoting Huckabay, 142 F.3d at 240). “‘[D]iscrete adverse actions, although racially motivated,

cannot be lumped together with the day-to-day pattern of racial harassment’ and therefore, if

otherwise untimely, cannot be saved by the continuing violation doctrine.” Id. (quoting Huckabay,

142 F.3d at 240).

 In summary fashion, Ramirez posits that these grounds of his claim are not time-barred

because he can prove a continuing violation. See P. Br. at 19. He cites no evidence that would

permit a reasonable finding that the promotion denials in 1999 and 2001 were anything but discrete

acts. He essentially offers one conclusory paragraph in his summary judgment response in support

of the ipse dixit assertion “that his failure to promote claim is a continuing violation under Title

VII[.]” See id. The court concludes that Ramirez cannot recover under Title VII for denials of

promotions or other conduct that took place before April 10, 2002, and it grants UT-Southwestern’s

summary judgment motion to this extent.

III

UT-Southwestern moves for summary judgment dismissing Ramirez’s Title VII

discrimination claim based on his failure in 2002 to receive promotions to the job of Foreman. It

contends, inter alia, that Ramirez cannot establish a prima facie case because the Foreman positions

were never filled.

 

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3

Ramirez acknowledges that this is the correct formulation. See P. Br. at 18. Moreover, this

construct of the prima facie case applicable to a promotion claim is widely followed. See, e.g.,

Cooper v. S. Co., 390 F.3d 695, 724 n.16 (11th Cir. 2004) (“Under McDonnell Douglas, a plaintiff

may establish a prima facie case of discrimination in promotion by establishing that (1) he belongs

to a racial minority; (2) he was qualified for and applied for a position the employer was trying to

fill; (3) he was denied the position; and (4) others who were not members of the protected class were

hired, or the employer continued to seek applicants with the plaintiff's qualifications.”); Amro v.

Boeing Co., 232 F.3d 790, 796 (10th Cir. 2000) (“To carry the initial burden of establishing a prima

facie case of race discrimination for a failure to promote claim, the plaintiff must typically show that

he or she (1) belongs to a minority group; (2) was qualified for the promotion; (3) was not promoted;

and (4) that the position remained open or was filled with a non-minority.” (quoting Reynolds v. Sch.

Dist. No. 1, 69 F.3d 1523, 1534 (10th Cir. 1995))).

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In the Fifth Circuit, in a case alleging discrimination based on the failure to receive a

promotion, “plaintiff's prima facie case consists of proof that (1) plaintiff is a member of a protected

class; (2) [he] applied for a promotion to an available position for which [he] was qualified; (3) [he]

did not receive the promotion; and (4) the employer filled the position with an employee from

outside the protected class or continued to seek applicants for the position.”3

 EEOC v. Exxon

Shipping Co., 745 F.2d 967, 972 n.3 (5th Cir. 1984); see Medina v. Ramsey Steel Co., 238 F.3d 674,

680-81 (5th Cir. 2001) (“In an age discrimination, failure to promote case, the employee must

demonstrate that 1) he belongs to the protected class, 2) he applied to and was qualified for a

position for which applicants were being sought, 3) he was rejected, and 4) another applicant not

belonging to the protected class was hired.”).

Ramirez cannot demonstrate that the Foreman positions that became available in 2002 were

filled by a non-Hispanic, or that UT-Southwestern continued to seek applicants for the position,

because the summary judgment evidence shows that UT-Southwestern decided not to fill the

positions at all. The most Ramirez can establish is that, after two Foreman positions opened in May

2002 and he applied for them, he was later informed that UT-Southwestern had “decided to

 

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4

UT-Southwestern seeks summary judgment dismissing Ramirez’s retaliation claim to the

extent based on the failure to promote him. See D. Br. at 15-17. It maintains that a failure to

promote is not an adverse employment action, and that it has articulated a legitimate,

nondiscriminatory reason for failing to promote him in 2002. In his response, Ramirez does not

appear to contend that he was denied the promotions in 2002 as acts of retaliation. He focuses

instead on his termination. See P. Br. at 13, 15. The court therefore concludes that Ramirez does

not assert a retaliation claim based on his failure to receive the promotions to Foreman in 2002.

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‘eliminate the Foreman positions.’” D. App. 299 (Ramirez Aff.). According to Ramirez’s evidence,

when he asked Johnson (his supervisor) about the jobs, Johnson responded that he “was not

supposed to talk about it.” Id.

Accordingly, because Ramirez has failed to introduce evidence that would permit a

reasonable trier of fact to find that UT-Southwestern filled the Foreman positions with employees

from outside the protected class or continued to seek applicants for the positions, he cannot establish

a prima facie case. The court dismisses his Title VII discrimination claim based on his failure to

obtain a promotion to the job of Foreman in 2002.

IV

UT-Southwestern also seeks summary judgment dismissing Ramirez’s claim that he was

discharged as an act of retaliation, contending that the motive he assigns to UT-Southwestern is

immaterial under Title VII.4

 It argues that Ramirez contends he was terminated for requesting pay

raises for himself and the other second- and third-shift workers, which is not a protected activity.

It also maintains that it has adduced evidence of legitimate, non-retaliatory reasons for discharging

him.

UT-Southwestern’s first argument misunderstands the gravamen of Ramirez’s retaliation

claim. Ramirez asserts that he was fired for complaining about retaliation and racial discrimination

against minority employees after they sought shift-pay differential. He does not contend that he was

 

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5

Ramirez contends he was retaliated against for complaining to Vahle that he and the five

employees who had requested shift-pay differential were being retaliated against and harassed as

minority employees. P. Br. at 14. The evidence he cites to support this assertion is Fact Nos. 20 and

21 that are set out in an earlier part of his brief. See id. Fact No. 20 pertains to a complaint made

by Andres Rocha and Lewis Wright, two employees who signed the shift-pay differential letter, not

to a complaint by Ramirez. See id. at 8 & n.25. Fact No. 21 merely refers to Johnson’s written

reprimand. In a footnote, however, Ramirez includes a citation to the affidavit of Lonnie Thompson

(“Thompson”), another maintenance worker who signed the shift-pay differential letter. See id. at

8 n.26. Thompson avers that UT-Southwestern retaliated against second- and third-shift workers,

including Ramirez, “after we reported racial discrimination[.]” P. App. 140. Although the evidence

appears to be somewhat thin that Ramirez (as distinguished from other employees) complained

about race discrimination and race-based harassment rather than merely about a lack of shift-pay

differential, UT-Southwestern does not seek summary judgment on this basis. 

6

When this court denies rather than grants summary judgment, it typically does not set out

in detail the evidence that creates a genuine issue of material fact. See, e.g., Swicegood v. Med.

Protective Co., 2003 WL 22234928, at *17 n.25 (N.D. Tex. Sept. 19, 2003) (Fitzwater, J.). 

7

Although it is not clear from Ramirez’s response whether he relies on the following

evidence to establish unlawful retaliation and to avoid summary judgment, the court notes that it has

not relied on it in denying UT-Southwestern’s motion. Ramirez cites evidence that, in response to

Johnson’s October 31, 2002 letter proposing to discharge him, he alleged that UT-Southwestern was

discriminating against him because of his race, national origin, and age. Because Ramirez made this

complaint after Johnson had already notified him that he was proposing to terminate his

employment, it is doubtful that he could prove that he was discharged in retaliation for making the

allegations of discrimination in response to the notice of proposed termination. 

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discharged simply for requesting that he and the other workers receive shift-pay differential.5

In support of its second argument, UT-Southwestern cites evidence that it terminated

Ramirez’s employment for engaging in misconduct at work on October 14 and 22, 2002. The court

has reviewed the evidence that Ramirez cites in opposition to these reasons, and it concludes that

he has presented genuine issues of fact that must be resolved by a trial, i.e., that each of the three

grounds on which UT-Southwestern relies is pretextual. See P. Br. at 16-18.6 The court therefore

denies summary judgment on this basis.7

 

 

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V

In response to UT-Southwestern’s motion, Ramirez asserts that his cross-training-based

claim should not be dismissed because UT-Southwestern did not address this cause of action in its

motion. In its reply brief, UT-Southwestern argues that it is entitled to summary judgment

dismissing the claim on the merits. The court holds that UT-Southwestern is not entitled to this

relief.

As the Fifth Circuit has explained, the summary judgment “movant’s burden is only to point

out the absence of evidence supporting the nonmoving party’s case. If the moving party fails to

meet this initial burden, the motion must be denied, regardless of the nonmovant’s response.” Stults

v. Conoco, Inc., 76 F.3d 651, 656 (5th Cir. 1996) (age discrimination case) (internal quotation

marks, brackets, and citations omitted). Because UT-Southwestern did not meet its initial burden,

Ramirez had no obligation to demonstrate why summary judgment should not be granted as to his

cross-training-based discrimination claim. Accordingly, the court denies this ground of

UT-Southwestern’s summary judgment motion.

* * *

UT-Southwestern’s January 31, 2005 motion for summary judgment is granted in part and

denied in part.

SO ORDERED.

April 28, 2005.

_________________________________

SIDNEY A. FITZWATER

UNITED STATES DISTRICT JUDGE

 

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