Grey v. Dallas Independent School District

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

February 14, 2008

No. 06-10779 Charles R. Fulbruge III

Summary Calendar Clerk

TIMOTHY GREY

Plaintiff - Appellant

v.

DALLAS INDEPENDENT SCHOOL DISTRICT; MANUAL VASQUEZ;

CEDRIC PORTLEY; DAN CLAXTON; GARY HODGES; LUIZ TAMEZ

Defendants - Appellees

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:04-CV-1164

Before KING, DAVIS and CLEMENT, Circuit Judges.

PER CURIAM:*

Timothy Grey was terminated from his employment as a security officer

for the Dallas Independent School District (“DISD”). He sued the DISD and

DISD supervisors Manual Vasquez, Cedric Portley, Dan Claxton, Gary Hodges

and Luiz Tamez (“the Defendants”) under Title VII and 42 U.S.C. § 1983. The

*

Pursuant to 5TH CIR. R. 47.5, this Court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

No. 06-10779

district court granted summary judgment in favor of the Defendants and we

affirm.

I. FACTS AND PROCEEDINGS

Grey was hired by DISD as a School Resource Police Officer in 2001. At all

relevant times, Vasquez was Chief of DISD Department of Police and Security

Services and Portley, Claxton and Hodges were Grey’s supervisors. Tamez was

DISD’s Coordinator of Employee Hearings and Grievances. In January 2002,

Portley discovered that Grey’s driver’s license had been suspended and assigned

him to the dispatch office until the license situation was resolved. While this

order was in place, Grey rode on patrol with other officers for several shifts.

When Portley and Claxton confronted Grey about disobeying their direct order,

Grey responded by stating “you want to talk, we can talk to my attorney.”1

On February 14, 2002, Portley and Claxton met with Grey to notify him

that he was under investigation for insubordination for this and other incidents.

On February 15, 2002, Grey filed a grievance against Vasquez, Portley and

Claxton in which he claimed retaliation, hostile work environment and “despair

treatment” for his “free speech” in requesting an attorney. In his first grievance,

Grey stated that “Chief Vasquez has a history of practicing retaliatory conduct

towards officers who opposed him or speak up for themselves. Vasquez also have

[sic] been proven guilty for retaliation by the EEOC.” Apart from the reference

to the Equal Employment Opportunity Commission (“EEOC”), nothing in Grey’s

four page handwritten grievance related to Title VII-type discrimination. Tamez,

the DISD administrator with whom the first grievance was filed, did not take

any action to investigate the grievance or schedule a hearing. Grey contacted

Tamez on March 19, 2002 to find out the status of his first grievance and Tamez

told him to take it up with his immediate supervisor, which was in violation of

1

Grey states that he obtained permission from Vasquez to ride with other officers

instead of staying in the dispatch office.

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a DISD policy requiring any administrator who received a grievance in error to

forward it to the proper administrator and notify the grievant. In August 2002,

after Grey had been terminated, Tamez discovered that the first grievance had

not been resolved and he scheduled a hearing for Grey before Vasquez. Vasquez

denied Grey’s grievance on August 29, 2002.

On March 7, 2002, Portley, Claxton and Hodges recommended to Vasquez

that Grey be terminated based on his insubordination prior to and during the

course of their February 2002 investigation. On April 30, 2002, Vasquez notified

Grey in writing that he was recommending termination for reasons which

included excessive absences and “[a]cts of insubordination and unprofessional

remarks directed towards supervisors.” Grey requested and received a hearing

before a three-person judicial panel. The hearing took place on August 6-7, 2002.

Grey was represented by counsel and presented witnesses and evidence. The

judicial panel affirmed Grey’s termination in a written order dated August 14,

2002.

Grey filed a charge of discrimination with the EEOC on January 22, 2004.

The EEOC determined that “the evidence obtained during the investigation does

not establish a violation of [Title VII].”

Grey, initially proceeding pro se, filed suit in district court on May 28,

2004. The Defendants filed motions to dismiss and motions for judgment on the

pleadings, to which Grey filed responses. On April 4, 2005, five months before

the discovery deadline, Grey served interrogatories and requests for production

on the Defendants. The DISD complied with his discovery request by producing

over 800 pages of business records under Rule 33(d) of the Federal Rules of Civil

Procedure. On May 10, 2005, Grey wrote a letter to the court asserting that the

discovery provided by the DISD was inadequate and that DISD was not willing

to cooperate with him. On August 25, 2005, less than five working days before

the discovery deadline, Grey’s attorney entered a formal appearance for the first

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time and noticed the depositions of Vasquez and other DISD personnel. The

Defendants filed motions for protective orders and motions to quash his

depositions, citing that the discovery deadline was August 31, 2005. On August

31, 2005, Grey filed a motion to compel discovery.

On September 30, 2005, Vasquez filed a motion for summary judgment.

On October 27, 2005, DISD filed a motion for summary judgment. Grey never

filed a response. On December 30, 2005, the district court granted summary

judgment in favor of the Defendants. On the same day, the district court denied

as moot Vasquez’s motion to dismiss, DISD’s motion for judgment on the

pleadings, and the Defendants’ motions to compel discovery. The district court

granted the Defendants’ motions for protective orders and motions to quash

arising out of the August 2005 discovery dispute. The district court denied Grey’s

August 31, 2005 motion to compel discovery and found that “the Defendants’

responses to Grey’s discovery requests have been reasonable and complete.”

On January 17, 2006, Grey filed a Rule 59(e) motion to vacate the

judgment and attached additional evidence, including affidavits from several of

Grey’s co-workers. Vasquez filed a motion to strike the additional evidence. On

June 14, 2006, the district court denied Grey’s motion to vacate on the ground

that the evidence he submitted “d[id] not qualify as newly discovered” and

denied Vasquez’s motion as moot.

Grey now appeals the grant of summary judgment, the denial of his

motion to vacate, the denial of his motions to compel and the grant of the

Defendants’ motions for protective orders.

II. STANDARDS OF REVIEW

This Court reviews a grant of summary judgment de novo and applies the

same criteria as the district court. Fed. Deposit Ins. Corp. v. Laguarta, 939 F.2d

1231, 1236 (5th Cir. 1991). As this Court noted in Little v. Liquid Air Corp.:

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[T]he party moving for summary judgment must “demonstrate the

absence of a genuine issue of material fact,” but need not negate the

elements of the nonmovant’s case. If the moving party fails to meet

this initial burden, the motion must be denied, regardless of the

nonmovant’s response. If the movant does, however, meet this

burden, the nonmovant must go beyond the pleadings and designate

specific facts showing that there is a genuine issue for trial. . . . We

resolve factual controversies in favor of the nonmoving party, but

only when there is an actual controversy, that is, when both parties

have submitted evidence of contradictory facts. We do not, however,

in the absence of any proof, assume that the nonmoving party could

or would prove the necessary facts.

37 F.3d 1069, 1075 (5th Cir. 1994) (internal citations and quotations omitted).

The district court did not consider the materials Grey submitted with his

Rule 59(e) motion, so we review the court’s order for an abuse of discretion. Ford

Motor Credit Co. v. Bright, 34 F.3d 322, 324 (5th Cir. 1994).

The district court’s discovery rulings are reviewed for abuse of discretion.

Turnage v. Gen. Elec. Co., 953 F.2d 206, 208 (5th Cir. 1992).

III. DISCUSSION

Grey, who is black, alleges that he was discriminated against on the basis

of race within the meaning of Title VII, and that the district court’s refusal to

rule on his motion to compel discovery rendered him unable to prove that he was

treated differently from similarly situated employees of other races. Grey alleges

that he was retaliated against on the basis of his request for an attorney and his

two grievances, and that this violated Title VII’s anti-retaliation provisions. Grey

argues that his termination violated his liberty interest in his reputation and his

property interest in his continued employment with DISD.

Grey did not file a response to the Defendants’ motions for summary

judgment. “Rule 56 does not impose upon the district court a duty to sift through

the record in search of evidence to support a party’s opposition to summary

judgment. Nor is it our duty to do so on appeal.” Stults v. Conoco, Inc., 76 F.3d

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No. 06-10779

651, 657 (5th Cir. 1996) (internal citations and quotations omitted). Because

Grey did not carry his burden to “designate specific facts showing that there is

a genuine issue for trial,” summary judgment was appropriate. Id. (internal

quotations omitted).

A. Title VII Discrimination

To prevail on his Title VII discrimination claim, Grey must establish a

prima facie case of discrimination. Tex. Dep’t of Community Affairs v. Burdine,

450 U.S. 248, 253 (1981). To establish his prima facie case, Grey must show that

he is a “(1) a member of a protected class; (2) qualified for the position held; (3)

subject to an adverse employment action; and (4) treated differently from others

similarly situated.” Abarca v. Metro. Transit Auth., 404 F.3d 938, 941 (5th Cir.

2005). Once Grey as the plaintiff establishes his prima facie case,

the burden shifts to the defendants to articulate some legitimate,

nondiscriminatory reason for the employee’s rejection. . . . [S]hould

the defendant carry this burden, the plaintiff must then have an

opportunity to prove by a preponderance of the evidence that the

legitimate reasons offered by the defendant were not its true

reasons, but were a pretext for discrimination.

Burdine, 450 U.S. at 253 (internal citations and quotations omitted).

The Defendants admit that Grey meets the first three elements of the

prima facie case for discrimination, but they argue that he has not established

the fourth element. They also argue that Grey’s insubordination and habitual

absences created a legitimate, nondiscriminatory reason for his termination. The

district court found that Grey failed to establish a prima facie case of

discrimination because he did not establish that he was treated differently from

similarly situated employees of other races. The district court also noted that

Grey did not attempt to show that the Defendants’ legitimate nondiscriminatory

reasons for their actions were pretextual. On appeal, Grey admits that he had

submitted no summary judgment evidence comparing himself to similarly

situated non-blacks. Because Grey failed to establish a prima facie case of race

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discrimination, we affirm summary judgment as to Grey’s Title VII

discrimination claim. Id.

B. Title VII Retaliation

To establish a claim for Title VII retaliation, Grey “must make a prima

facie showing: (1) that [he] engaged in activity protected by Title VII, (2) that an

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

the protected activity and the adverse action.” Banks v. E. Baton Rouge Parish

Sch. Bd., 320 F.3d 570, 575 (5th Cir. 2003) (internal quotations omitted). On

appeal, Grey claims that he was retaliated against for telling Portley and

Claxton that they should speak to his attorney, filing the February 15, 2002

grievance to protest the insubordination investigation, and filing the May 2,

2002 grievance to protest being recommended for termination. The district court

found that Grey failed to establish a prima facie case of Title VII retaliation

because he did not demonstrate that he engaged in protected activity. Upon

review of the record, we affirm.

“Title VII does not require that a plaintiff prove that the conduct opposed

was actually in violation of Title VII, but only that a charge was made, or that

participation in an investigation of a violation of Title VII occurred.” Green v.

Adm’rs of the Tulane Educ. Fund, 284 F.3d 642, 657 (5th Cir. 2002) abrogated

on other grounds by Burlington N. & Santa Fe Ry. Co. v. White, 126 S.Ct. 2405,

2412–13 (2006)). Here, Grey failed to prove that he engaged in activities

protected under Title VII. Grey’s first allegedly protected activity consisted of his

statement to his superior officers, “you want to talk, we can talk to my attorney.”

Grey’s second allegedly protected activity, his February 15, 2002 grievance,

similarly did not refer to race, but claimed retaliation for “free speech.” Grey’s

May 2, 2002 grievance stated that he was being terminated “strictly in

retaliation in which Chief Manny Vasquez has taken out against me because of

the grievance I filed for making such retaliatory comments and act of displaying

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No. 06-10779

discriminatory practices.” In other words, Grey alleged in his second grievance

that he was being retaliated against for filing the first grievance. Like the first

grievance, the second grievance did not mention race. Both of Grey’s formal

grievances related to the same initial incident with his superiors, in which there

was no mention of race nor any allegation of discrimination. The district court

correctly concluded that Grey’s retaliation claim failed because he did not show

that he opposed activities protected under Title VII. See Banks, 320 F.3d at 575.

C. § 1983 Liberty Interest

Grey asserts that his termination violated his Fourteenth Amendment due

process rights because he was a public employee “terminated for reasons that

were false, publicized and stigmatizing.” The district court rejected this claim

and held that Grey “did not have a protected liberty interest in his reputation

and good name as a matter of law.” We affirm. This Court has stated that “mere

injury to reputation, even if defamatory, does not constitute the deprivation of

a liberty interest.” Finch v. Fort Bend Indep. Sch. Dist., 333 F.3d 555, 561 n.3

(5th Cir. 2003) (rejecting a former school principal’s claim of a liberty interest in

her good name). The district court correctly rejected Grey’s § 1983 liberty claim.

D. § 1983 Property Interest

Grey asserts that he has a protected property interest in his continued

employment with DISD and that he was deprived of this interest without due

process of law. The district court rejected this claim because Grey failed to

demonstrate that he had a protected property interest in his employment. We

affirm. Texas is an at-will employment state, and therefore Grey bears the

burden of proving the existence of a contract establishing a property interest in

his continued employment. Schultea v. Wood, 27 F.3d 1112, 1116 (5th Cir. 1994),

reh’g en banc granted, 47 F.3d 1427 (1995). Grey did not point to any contract

which altered his employment at-will status. The Defendants submitted

affidavits and DISD policies showing that as support staff, Grey did not have a

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No. 06-10779

written contract and was an at-will employee. We find that Grey lacked a

protected property interest in his DISD employment and we affirm the district

court’s grant of summary judgment on Grey’s § 1983 property interest claim.

E. Discovery Motions

Grey appeals the district court’s discovery rulings. He alleges that the

district court abused its discretion by not granting his motions to compel and by

quashing his depositions of the Defendants on the same day that it granted

summary judgment against him. We find that the district court did not abuse its

discretion and we affirm.

With regard to his motion to compel, Grey notes that DISD released

hundreds of pages of information from its grievance files but “refused to identify

the participants by race.” Grey states that without this information, he was

unable to establish his Title VII claim of race discrimination. This argument is

without merit for a number of reasons, including the fact that Grey could have

relied on other evidence (including, for example, co-worker affidavits) to

establish a genuine issue of material fact regarding DISD’s disparate treatment

of black security officers. Instead, Grey chose not to respond to the Defendants’

motion for summary judgment. He now bears the consequences of that decision.

In ruling on Grey’s motion to compel, the district court found that the

DISD’s discovery responses were “reasonable and complete.” If Grey required

further discovery in order to respond to the Defendants’ motions for summary

judgment, he should have requested a continuance under Rule 56(f). See

Washington v. Allstate Ins. Co., 901 F.2d 1281, 1285 (5th Cir. 1990). Grey

neither filed such a motion nor a response to summary judgment showing why

he was entitled to trial.

Even if we accept Grey’s contention that additional discovery would have

enabled him to prove his Title VII race discrimination claim, we are not required

to find that the district court abused its discretion by denying his motion to

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compel discovery, because it was filed on the day of the discovery deadline after

an extensive discovery period. Turnage v. Gen. Elec. Co., 953 F.2d 206, 209 (5th

Cir. 1992) (holding that the district court did not abuse its discretion when it

denied plaintiff’s request to conduct potentially dispositive discovery, “given (i)

the imminence of trial, (ii) the impending discovery deadline, and (iii) [plaintiff’s]

failure to request an inspection earlier”). The district court did not abuse its

discretion when it denied Grey’s motion to compel.

Grey also challenges the district court’s decision to grant the Defendants’

motions to quash and motions for protective orders. His claims are without

merit. Granting protective orders because of impending discovery deadlines is

not an abuse of discretion. Id. Grey noticed the August 29-30, 2005 deposition

of two DISD employees on August 26, 2005. The discovery deadline set by the

district court was August 31, 2005. The district court did not abuse its discretion

when it granted the Defendants’ discovery motions.

F. Motion to Vacate

Following the entry of summary judgment, Grey filed a Rule 59(e) motion

to vacate. The district court denied the motion. Rule 59(e) motions to vacate or

amend a judgment “must clearly establish either a manifest error of law or fact

or must present newly discovered evidence.” Simon v. United States, 891 F.2d

1154, 1159 (5th Cir. 1990) (internal quotations omitted). The district court

correctly stated that the additional evidence Grey appended to his motion to

vacate (principally affidavits from Grey’s former co-workers) was fully available

to Grey at the time of summary judgment. The district court did not abuse its

discretion when it denied Grey’s motion to vacate, and we affirm.

IV. CONCLUSION

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The opinion and order of the district court granting summary judgment is

AFFIRMED.

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