Petition for Writ of Certiorari — Anderson v. Dallas Area Rapid Transit

Supreme Court, U.S.

FILED

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OFFICE OF THE CLERK

No.

ates

IN THE

Supreme Court of the United States

BOBBY J. ANDERSON,

Petitioner,

V.

DALLAS AREA RAPID TRANSIT,

Respondent.

Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Fifth District

PETITION FOR A WRIT OF CERTIORARI

BOBBE J. ANDERSON

10000 Walnut Street #1045

Dallas, Texas 75242

(972) 690-3208

Pro Se

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ESTION P ENTED FOR REVIEW

Did the district court err in granting summary judgment to Dallas

Area Rapid Transit in a Title VII discrimination case in finding that

Bobbie J. Anderson had not presented a material fact issue regarding

discriminatory pretext in his termination, that Dallas Area Rapid Transit

reasonably believed Bobbie J. Anderson violated a work rule, and that

Dallas Area Rapid Transit is Not a “Person” within the meaning of 42

U.S.C. § 1983?

: srs. ro NCAR i Sed

PARTIES TO THE PROCEEDINGS BELOW

All parties to the proceedings in the courts below are listed in

the caption.

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TABLE OF CONTENTS

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PARTIES TO THE PROCEEDINGS BELOW .............. li.

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STATEMENT OF JURISDICTION ....................... 2

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REASONS FOR GRANTING THE WRIT .................. 6

I. THE DISTRICT COURT ERRED IN

FINDING THAT BOBBIE J. ANDERSON

HAD NOT PRESENTED A MATERIAL

FACT ISSUE REGARDING

DISCRIMINATORY PRETEXT IN HIS

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Il. THE DISTRICT COURT ERRED IN

FINDING THAT DALLAS AREA RAPID

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THE DISTRICT COURT ERRED IN

FINDING THAT DALLAS AREA RAPID

TRANSIT IS NOT A “PERSON” WITHIN

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TABLE OF AUTHORITIES

CASES

ft ited States S o

Celotex Corp. V. Catrett, 477 U.S. 317 (1986) ............. 6,7

Lake Country Estates, Inc. v. Tahoe Regional Planning Agency

aS oe ie ay 18

McDonnell Douglas v. Green, 411 U.S. 792 (1973) ......... 9,10

Monell v. Department of Social Services, 436 U.S. 658 (1978) 17,19

Texas Dep’t of Community Affairs v. Burdine,

te Gs oe ks ose’ k 9,17

Watson v. Ft. Worth Bank and Trust, 487 U.S. 977,

WGN EOE CUO no. ons 4 ccd was dacdavcaecacscs 9

i fA ls and District Courts

Bender v. Brumley, | F.3d 271 (5th Cir. 1993) ............... 6

Clark v. Tarrant County, 798 F.2d 736 (Sth Cir. 1986) ........ 18

Hickman v. U.G. Lively and Metropolitan Transit Authority,

er Wee. Bae CATA. Tee, BSNS)... . 6... ccc c ccs 19

Houston Contractors Association v. Metropolitan Transit

Authority of Harris Co., 984 F.Supp. 1027

I eee 19

International Shortstop, Inc. v. Rally’s Inc.,

oe eo | 7

Reid v. State Farm Mut. Auto. Ins. Co.,

pA gl 7

Decisions of State Courts

Held v. State of Texas, 948 S.W.2d 45

(Tex.App.--Houston [14th Dist.] 1997) .............. 16

State v. Elliott, 879 S.W.2d 381

(Tex.App.—Waco 1994, pet. ref'd.) ..... 00000000, 16

State v. Norton, 899 S.W.2d 303

(Tex.App.--Houston [14th Dist.] 1995, no pet.) ........ 16

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eT eT ee eee

Statutes

wo UE I RS IR ok ne a 2

Set Setar eee 5,6,17,18,19

Ho a, TSS Sea ait 2

ies oii vis thc ond ccscs....... 6

Tex. Code Crim. Proc. Ann. Art. 2.13 .................... 16

Tex. Rev. Civ. Stat. Ann. Art. 1118x................._ 15,19

Tex. Transp. Code § 452.052 ........................... 18

Tex. Transp. Code § 452.053 .......................... 19

Tex. Transp. Code § 452.054 ......................... 19

Tex. Transp. Code § 452.061 .......................... 19

Tex. Transp. Code § 452.701 .......................... 18

Tex. Transp. Code § 452.703 ........................ a ae

Tex. Transp. Code § 452.706 ......................... 18

Tex. Transp. Code § 452.715 ......................... 18

Tex. Transp. Code § 452.720 .......................... 18

-vi-

IN THE

Supreme Court of the United States

No.

BOBBIE J. ANDERSON,

Petitioner,

V.

DALLAS AREA RAPID TRANSIT,

Respondent.

Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Fifth Circuit

PETITION FOR A WRIT OF CERTIORARI

Petitioner Bobbie J. Anderson prays that the Court issue a writ

of certiorari to review the judgment of the United States Court of

Appeals for the Fifth Circuit, in this case.

0 B Ww

The decision of the United States District Court for the Northern

District of Texas Dallas Division is set forth at pages 3a to 18a of the

Appendix, (App. 8a-10a). The decision of the United States Court of

Appeals for the Fifth Circuit is set forth at pages la to 2a of the

Appendix, (App. 1a-2a).

Page |

STATEMENT OF DICTION

This is a civil action seeking relief under Title VII of the Civil

Rights Act of 1964, as amended, 42 U.S.C. §2000e, et seq. (“Title

VII"). The district court entered summary judgment for Dallas Area

Rapid Transit (“DART”) on September 30, 1998. That judgment was

appealed to the Court of Appeals for the Fifth Circuit on October 30,

1998. On May 6, 1999, the Court of Appeals affirmed the district

court's decision. Pursuant to 28 U.S.C. §1254, the Supreme Court has

jurisdiction over final decisions of the Court of Appeals.

STATEMENT OF THE CASE

A. Facts

The facts are in dispute.

Bobbie Anderson (“Anderson”) worked from May 1996 through

April 3, 1997, as a transit police officer for DART. As a standard

condition of employment, Anderson was placed on an initial six month

probationary period. Anderson received field training with senior transit

police officers. He received high marks throughout his training.

During the probationary period, Anderson was involved in an

incident while on-duty. After investigation of the incident, Chief Juan

Rodriguez initially decided to terminate Anderson. Chief Rodriguez

was advised by his superior, Victor Burke not to terminate Anderson.

After reconsidering the additional advice from his superior, Chief

Rodriguez gave Anderson a five-day suspension.

On March 21, 1997, at approximately 1:45 a.m., while off-duty,

Anderson and his passenger Irish Dodd were driving eastbound on

Northwest Highway near Marsh Lane headed toward the only 24 hour

Eckerd in the area on Mockingbird and Airline, when a dark colored

Jeep operated by four Southern Methodist University students abruptly

and dangerously pulled out of a side street adjacent to Anderson’s

vehicle. (Anderson Dep. p. 15 and Anderson Dep. pp. 294-5).

Page 2

Le ee |

Anderson and several other vehicles had to swerve off the roadway to

avoid collision, as the Jeep darted “across three lanes of traffic.”

(Anderson Dep. p. 296). The Jeep continued to swerve all over the

road, forcing other cars on the road onto the curb on the right, onto the

median in the center of the road, or into on-coming traffic lanes on the

left. (Anderson Dep. p. 299 and Dodd Dep. pp. 19, 21).

Believing that the Jeep would stop driving recklessly if he

identified himself as a peace officer, Anderson pulled up next to the

passenger side of the vehicle while at the stop light, identified himself as

a transit police officer and told them to “cut out the horseplay before

someone was hurt.” (Anderson Dep. pp. 301-2). The passenger gave

Anderson the “middle finger” and the driver proceeded eastbound prior

to the light turning green. The driver continued to drive in a reckless

and dangerous manner. (Anderson Dep. pp. 302-3 and Dodd Dep. p.

18). Anderson asked his passenger Irish Dodd to copy down the

license plate number and the SMU parking decal number on the Jeep.

Anderson dropped back from one to two car lengths from the Jeep as

a safety caution and proceeded to follow with caution. (Anderson Dep.

p. 302-3). Anderson had no access to a phone in his vehicle to be able

to contact the police. Anderson was on the constant look out for a

police car so that he could alert them to the reckless driving of the Jeep.

(Dodd Dep. pp. 23-4). In the interest of public safety, Anderson

continued to follow the Jeep into the University Park and Southern

Methodist University campus.

As Anderson approached the SMU campus, Anderson was sure

that he would be able to locate a police officer to handle the matter.

(Dodd Dep. p. 23 and Anderson Dep. p.311). The Jeep tumed left onto

Daniels from Hillcrest. He immediately turned off his headlights.

(Anderson Dep. p. 322). The Jeep continued to travel without lights for

a considerable distance. (Anderson Dep. pp. 324-32). Eventually, the

Jeep turned down an alley.

Anderson followed the Jeep into an alley. As he came out of

the alley, Anderson could not find the Jeep. Anderson saw a white

police car and flashed his lights in an attempt to signal the officer for

Page 3

assistance. The officer did not respond. (Anderson Dep. p. 332).

Anderson got out of his vehicle to look for the police car. (Anderson

Dep. p. 334) After exiting his vehicle, Anderson heard a noise behind

him. He turned around and saw the Jeep. The Jeep drove straight at

Anderson. Instinctively, Anderson drew his gun to protect himself from

the Jeep coming at him. He felt that Jeep was being used as a weapon

against him. (Anderson Dep. pp. 348-9).

Anderson never pointed the gun at the Jeep or any of the Jeep’s

occupants. Rather, he held it pointed to the ground and moved quickly,

reflexively, in a “rolled out” stance to put his car in between him and the

Jeep. (Anderson Dep. p. 348 and Dodd Dep. p. 43). The Jeep ran over

the curb turning right, going over the grass, nearly hitting a stop sign.

(Anderson Dep. p. 349-50 and Dodd Dep. p.44).

Anderson got back in the car and went in the direction of the

SMU police Department to report these incidents. On his way,

Anderson saw that the University Park police had seen the Jeep make

a reckless right hand turn to avoid them and that they were in pursuit.

(Anderson Dep. pp. 351-3). The driver of the Jeep continued driving

recklessly until he was forced to pull over by the University Park police.

Anderson followed the University Park police vehicle until they affected

a stop.

When the police officer made the stop of the Jeep, Anderson

parked his vehicle, exited and was prepared to give his statement to the

police officers present. The University Park police told Anderson “to

get on out of there, they would handle it.” (Bateman Dep. pp. 80-1)

They failed to interview Anderson’s passenger, Irish Dodd. (Bateman

Dep. p. 81 and Dodd Dep. pp. 46-7). The University Park Police issued

no citations to any of the participants.

At 8:00 a.m., that same day, pursuant to DART regulations,

Anderson reported the incident to his immediate supervisor. Sergeant

Long initiated an investigation of the March 21, 1997 incident.

Anderson was placed on administrative leave pending further

investigation. (Bateman Dep. p. 53) During the investigation, Sergeant

Page 4

rr

Billy Bateman took statements from Anderson, Dodd and an SMU

Lieutenant who was at the scene of the end of the chase.

On April 3, 1997, after a haphazard investigation, Chief Juan

Rodriguez terminated Anderson for the incident occurring in the early

morning hours of March 21, 1997. The stated reasons for the

termination included: (1) engaging in a pursuit of a vehicle out of

jurisdiction of the Transit Police while off-duty; (2) pursuing a vehicle

at unsafe speeds of up to 65 mph; (3) by unnecessarily endangering

yourself, your passenger, and the four occupants of the vehicle you

pursued; (4) by drawing your service weapon from your person towards

the vehicle; and (5) acting without the approval or consent of the DART

Transit Police Department and in violation of DART Transit Police

Department Code of Conduct. (Exhibit “C”). On May 20, 1998, Chief

Rodriguez denied Anderson's protest under DART’s internal grievance

procedure.

Anderson protested his termination through DART’s dispute

resolution process which consists of three steps. Step one requires the

aggrieved employee to present his complaint to his immediate

supervisor. Step two allows the employee to submit his complaint to

the Chief if it was not satisfactorily resolved at step one of the process.

Step three allows the employee to appeal his complaint if it was not

satisfactorily resolved in step two to the Management Appeals

Committee. The Committee submits its recommendation to DART’s

President/Executive Director who reviews the Committee’s decision and

either accepts it or makes an independent finding.

At step three in the process, Anderson presented his case before

the Committee, which found Anderson should not be reinstated. Finally,

DART’s President/Executive Director, Roger Snoble, reviewed the

Committee’s written recommendation and the documents presented to

the Committee, and also denied Anderson’s request for reinstatement.

B. Proceedings Below

This Case involves a claim of discrimination under Title VII of

Page 5

the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000¢, et seq.

(“Title VII”). On July 28, 1997, Bobbie Anderson, as plaintiff, filed a

civil action claiming that DART, defendant, had terminated him based

on his race which violated Title VII. On July 22, 1998, DART filed a

motion for summary judgment and brief in support thereof. The district

court granted DART’s motion for summary judgment, filing the Court's

Memorandum Opinion and Order on September 29, 1998. Final

Judgment dismissing Anderson’s complaint with prejudice was entered

on October 30, 1998.

Anderson filed a Notice of Appeal to the Court of Appeals for

the Fifth Circuit on October 30, 1998. After reviewing the record and

the briefs, the Court of Appeals affirmed the district court’s decision on

May 6, 1999. Bobbie Anderson appeals from this judgment.

RE NS FOR TING THE WRIT

The Supreme Court should grant certiorari because the Court of

Appeal’s decision raises an important question of federal law that this

Court should resolve.

I. THE DISTRICT COURT ERRED IN FINDING THAT

BOBBIE J. ANDERSON HAD NOT PRESENTED A

MATERIAL FACT ISSUE REGARDING

DISCRIMINATORY PRETEXT IN HIS TERMINATION.

A. A Motion For Summary Judgment Should Be

Viewed Most Favorable Towards the Nonmoving

Party.

Summary judgment is proper only when no genuine issue of

material fact exists and the moving party is entitled to judgment as a

matter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477

U.S. 317, 323 (1986); Bender v. Brumley, 1 F.3d 271 (Sth Cir. 1993).

If there are genuine disputes as to material facts, summary judgment

should not be granted.

Page 6

When deciding a motion for summary judgment, the court may

not evaluate the credibility of the witnesses, weigh the evidence, or

resolve factual disputes as long as “the evidence in the record is such

that a reasonable jury drawing all inferences in favor of the nonmoving

party could arrive at a verdict in that party’s favor, the court must deny

the motion.” International Shortstop, Inc. v. Rally’s Inc., 939 F.2d

1257, 1263 (Sth Cir. 1991).

The review of the facts must draw all inferences most favorable

to the party opposing the motion. Reid v. State Farm Mut. Auto. Ins.

Co., 784 F.2d 577, 578 (Sth Cir. 1986). The Court must resolve all

ambiguities and draw all reasonable inferences in favor of the

nonmoving party. Any assessments of credibility and all choices

between available inferences are matters to be left for a jury, not matters

to be decided by the Court on summary judgment. Celotex Corp.,

supra, at 323.

The district judge erred when it failed to resolve all ambiguities

and draw reasonable inferences in favor of Anderson, the nonmoving

party. The district court relied upon DART’s version of the facts rather

than Anderson’s, the nonmoving party. The district court erred in

finding that these facts are not material as they go to the theory of

DART’s termination of Anderson.

First, DART characterizes Anderson’s actions in following the

car as a “high speed chase” with absolutely no factual foundation.

DART relied upon Sergeant Long’s report that Irish Dodd said that the

Jeep was traveling approximately 65 mph. Ms. Dodd testified about

the circumstances of that statement and that the statement did not

accurately reflect her recollection of the events as they occurred that

night. (Dodd Dep. pp. 7-8, 71-72). DART also relied on a

memorandum by Sergeant Bateman pertaining to his observations of the

traffic flow. There is no showing of any expertise or specialized

knowledge which would qualify Sergeant Bateman to reach any

conclusion as to the traffic pattern and traffic flows on March 21, 1997.

Those statements do not constitute competent summary judgment

evidence and should not be considered by this Court. Anderson asserts

Page 7

that he was following the Jeep at a safe distance, at a safe rate of speed.

Statements taken from Anderson and Dodd indicated that Anderson

“followed” the Jeep in an effort to locate a police officer and report the

erratic driving witnessed by Anderson and Dodd. (Exhibit “D,” “F”,

and “G”).

Second, DART misleadingly states that Anderson saw a police

car in the vicinity and decided not to advise this unit of the traffic

violation. Anderson stated that the police car was engaged in its own

traffic enforcement action and that, as a police officer, he knew that it

would be inappropriate for him to interfere with that traffic stop.

(Anderson Dep. 319-320)

Third, DART asserts that Anderson “pulled his gun and pointed

it at the driver,” a fact which Anderson has repeatedly denied. DART

relies on two memoranda authored by Sergeant Bateman. The

memoranda are hearsay and do not constitute competent summary

judgment evidence and should not be considered by the Court. (Def.

App. Exs. 153, 154). Anderson states that he pulled his weapon but did

not have time to do anything else because the vehicle was so close to

him. (Anderson Dep. p. 348).

If the court had viewed this information in the light most

favorable to Anderson, the nonmoving party, the court would have

found that Anderson provided sufficient material facts that the evidence

is such that a reasonable jury would draw all inferences in favor of the

nonmoving party and could arrive at a verdict in that party’s favor. The

court should have denied the motion. This Court should reverse the

lower court’s decision and remand for a jury trial.

B. The Plaintiff in a Title VII Trial Must Abide by the

McDonnell Douglas Burden Shifting Framework.

Under the McDonnell Douglas burden-shifting framework, once

the plaintiff has established a prima facie case, the defendant must

provide a legitimate, non-discriminatory reason for the adverse

employment action. The burden of persuasion then shifts back to the

Page 8

plaintiff who must show that the defendant’s reason is merely pretext to

disguise discriminatory intent. McDonnell Douglas v. Green, 411 U.S.

792 (1973).

The first two prongs of the framework are not at issue. The

third prong relating to discriminatory pretext is essential to the matter

at hand. To establish an inference of discrimination from circumstantial

evidence, the trier of fact must look at all available evidence and

determine if an inference may be made. Watson v. Ft. Worth Bank &

Trust, 487 U.S. 977, 983, 108 S.Ct. 2777, 2783 (1988).

To meet its burden, DART claims that violation of DART’s

authority both with respect to subject matter jurisdiction and

jurisdictional property boundaries was the reason for Anderson’s

termination. Anderson must prove that this is a pretextual reason for

the termination and the true reason for their employment decision was

his race. He can succeed by showing directly or indirectly that the

discriminatory reason most likely motivated DART or that their reasons

are unworthy of credence. Texas Dep't of Community Affairs v.

Burdine, 450 U.S. 248, 256 (1981).

This court must determine whether or not the employee has met

the requirements to prove that the employer’s reason for his termination

was pretext for discriminatory motives.

1. To demonstrate intentional discrimination a plaintiff

may use one of two methods. First, the plaintiff may

show through direct evidence that they were

discriminated against. The other option is to

establish an inference of discrimination and pretext.

A plaintiff may allege that there is direct evidence that the

employer discriminated against the employee. In Anderson’s case, there

is only circumstantial evidence from which an inference of discrimination

may be reached, so this first option is unavailable to the appellant.

An alternative method by which an inference of intentional

Page 9

discrimination can be raised was established by the Supreme Court in

McDonnell Douglas. 411 U.S. at 800-01. The plaintiff must

demonstrate the existence of a material fact as to whether’s defendant’s

explanation is a pretext for discrimination. Pretext can be shown by the

employee was treated differently than similarly situated co-workers.

This is demonstrated by a review of the discipline imposed upon

other DART Transit Officers who were not terminated although their

conduct was more egregious. These officers were Hispanic versus the

African-American officers who were terminated.

The first officer not terminated was also involved in an off-duty

incident similar to Anderson. Officer Thomas Montoya was arrested in

an off-duty bar fight in which he was removed by bouncers from the

Iguana Mirage night club on August 25, 1996 at approximately 2:20

a.m. Montoya was restrained, arrested, handcuffed and charged with

Class C misdemeanor assault by two Dallas Police officers. Like

Anderson, Officer Montoya’s off-duty behavior occurred at

approximately 2:00 in the morning. Unlike Anderson, Montoya failed

to report his incident to DART authorities the next morning consistent

with departmental rules. It was a formal report from the Dallas Police

Department officers filed the next afternoon with the DART duty

Sergeant that even alerted DART to the incident.

Montoya’s behavior resulted in a formal letter of apology from

Rodriguez to Chief Ben Click of the Dallas Police Department dated

September 23, 1996. For this infraction of “conduct unbecoming a

peace officer”, Officer Montoya rvceived only a five day suspension

with out pay and was removed from motorcycle duty. (Rodriguez Dep.

Vol. 1, p. 298)

Montoya was more at risk of harming the public than Anderson

in that he was involved in a fight were people could have been hurt.

Montoya was also arrested for his actions and the altercation happened

within a night club which would not be within the jurisdiction of DART.

If being outside of DART’s jurisdiction is a basis for termination, then

Montoya should have been terminated. However, he was not. This

Page 10

shows preferential treatment by DART towards Hispanic officers.

The second Hispanic officer was on-duty at the times of his

complaints. However, his behavior caused great harm to the public yet

he was never terminated for his actions. Between January 29, 1997 and

February 21, 1997, just before the termination incident of Officer

Anderson, Julio Sanchez was the subject of at least five (5) formal

citizen complaints made in a 30 day period. (Rivera Dep. pp. 38-9 and

Sanchez Dep. pp. 29-33). During the investigation of these formal

complaints, not only was Sanchez not placed on administrative leave, he

was allowed to continue his menacing practices on the very public

DART purports to protect. While the investigation of an incident where

Sanchez sprayed a seated, hand-cuffed suspect was being conducted,

Sanchez was allowed to keep his DART issued pepper mace and then

sprayed another citizen in violation of DART policy within a few weeks

of the first incident. (Sanchez Dep. pp. 29-45 and Rivera Dep. pp. 38-

44).

On January 29, 1997, the first complaint was initiated by a

DART customer, who Sanchez removed from the train for allegedly

failing to have the proper fare. “The complainant alleged that Sanchez

“tripped him’, used inappropriate language, and threatened to mace him,

without cause.” (See Exhibit “H”). According to Deposition testimony

taken from both Sanchez and Rivera, this particular incident was not

investigated until other similar complaints had been lodged against

Sanchez. (Sanchez Dep. p. 32)

The second complaint was one of unnecessary force as well. On

February 4, 1997, Sanchez responded to a call for cover from Officer

M. Hawkins at the Light Rail Transit Center at Union Station. Upon his

arrival, the suspect had been handcuffed by Hawkins and was “seated

on one of the seats provided for the patrons.” (See Exhibit “T>.

According to Sanchez, the suspect was making derogatory comments,

clearing his throat and spitting at him. (Sanchez Dep.36) Sanchez

testified that he “did grab a can of mace, and squirted his face.” He

then added, “[t]hat squelched the whole thing. He didn’t say a word

anymore about anything other than said (sic) Man, please, clean my

Page 11

eyes. I’m burning. My eyes are burning and my face. Clean me up.”

(Sanchez Dep. p. 36).

Citizen bystanders witnessed the actions of Sanchez and

reported the use of unnecessary force as they had witnessed to DART.

It was the bystander citizens who made the formal complaint of

unnecessary force to DART. (Sanchez Dep. pp.36-7). When the

bystanders asked Sanchez what he was doing, he threatened to mace

them as well. (Sanchez Dep. p. 37, Rivera Dep. pp. 47-48, and Exhibit

“T", Interoffice Memorandum dated March 13, 1997, Subject: Level II

Appeal.) Chief Rodriguez conducted an investigation, made a finding

that unnecessary force had been exacted upon the suspect and

suspended Sanchez for five days.

The third complaint also involves pepper spray. According to

the DART Police report, Sanchez sprayed the complainant’s face and

mouth with pepper mace. (Exhibit “I”). On February 17, 1997,

Sanchez claims he was checking for DART fares on the rail. As he

approached a white female, he noticed that her transfer has expired. He

told her politely that her ticket had expired and instructed her that she

would have to get off at the next stop and purchase a ticket. (Sanchez

Dep. p. 67). According to Sanchez’s deposition testimony, a black male

passenger on the train, stood up as he was talking to the white

passenger and stated, “What the hell are you talking about my ticket is

expired?” and then pulled the emergency button for the train operator

to respond. (Sanchez Dep. P. 68). Sanchez claims he then told the

black male passenger that he would have to get off the train at the next

station. For unknown reasons, Sanchez “pulled [his] mace spray and

told the [suspect] [he] would spray him if he did not comply.” As the

black male passenger was exiting the train, Sanchez sprayed him with

pepper mace and the passenger sprayed him back.

The black male passenger did not file a complaint with DART

conceming these events. The white passenger filed the complaint. She

had been allowed to keep her seat although she had an expired transfer.

She felt that the black male passenger had not been treated as fairly as

she had. (Sanchez Dep. p. 70). Complaints four and five were made

Page 12

anonymously by telephone on February 21, 1997. Both calls were

received by DART headquarters and complained that Sanchez had used

“unnecessary force on a customer while assigned to the light rail.”

(Exhibit “T’”).

Sanchez received two internal complaints from two fellow

officers, both female. One officer (a subordinate) alleged that during

training, Sanchez treated her harshly. Yet another female officer lodged

a sexual harassment allegation against Sanchez. She filed it internally

with DART and then sought help outside DART at the EEOC. The

lawsuit is pending. (Sanchez Dep. p. 31, Rivera Dep. pp. 73-4 and

Rodriguez Dep. pp. 45-6.)

For the foregoing complaints, Rodriguez convened a “never-

before empaneled committee,” rather than terminate Sanchez as he did

Anderson. (Rodriguez Dep. Vol. 1, pp. 209-10). Rodriguez had the

authority to terminate Sanchez as he did Anderson. Rodriguez failed to

appear at the committee’s second meeting and they voted a ten day

suspension for Sanchez with a demotion from the rank of corporal to

officer II for all of the infractions. (Rodriguez Dep. p. 241) By

convening the special committee and using the recommendation,

Rodriguez would use this as the reason why he did not terminate

Sanchez rather than real reason, favoritism.

Despite Rodriguez’s implications that this was a mechanism to

terminate Sanchez, this gave the Hispanic officer additional due process

that was not given to Anderson. Although Officer Sanchez was

subsequently fired for medical reasons, he was ultimately rehired and

recently promoted. This is a clear case of preferential treatment towards

Hispanic employees over African-American employees.

Because of the difference in treatment in disciplinary actions of

Hispanics and African-Americans, this evidence shows a pretext of

discriminatory motives by DART. The district court overlooked this

material evidence and erred in its finding that Anderson produced no

material fact to support his claim of discrimination.

Page 13

2. A review of the facts present a racial bias which

stems from Chief Rodriguez and s tacitly and

actively condoned at all levels of supervision at

DART.

Chief Rodriguez testified that, to his knowledge, neither Victor

Burke or Roger Snoble had ever called into question the “fairness or

consistency or efficiency” with which he was supervising investigations

or imposing discipline. (Rodriguez Dep. Vol. 1, p.87). This inference

is further supported by Rodriguez’s actions with respect to the

administrative investigations of Anderson.

It is undisputed that Rodriguez had decided to terminate

Anderson for the incident involving the stolen vehicle. Also, it is

undisputed that Victor Burke, Rodriguez’s immediate supervisor, called

Rodriguez and met with him at least twice to discuss Anderson's

situation with respect to this incident. Burke, after being fully briefed

by Rodriguez, concluded that DART “had a new transit officer that just

made a mistake that went outside of the normal transit officer's

investigative role and rules are here at DART, but his opinion was not

that it was of the magnitude for the maximum punishment.” (Burke

Dep. pp. 61-6).

Burke determines that it is an infraction but not of sufficient

magnitude for maximum punishment; Rodriguez determines that

Anderson should be terminated. That comparison provides a basis for

an evidentiary inference that Rodriguez was imposing a harsher

discipline because of Anderson’s race.

Additionally, at the time that Anderson was fired, not one

Hispanic officer, even ones with records inferior to his, had ever been

terminate. (Rodriguez Dep. Vol. I, pp. 37-8, 46, 74, and 286). By way

of contrast, several of the African American officers who were fired by

Rodriguez or forced to resign by Rodriguez have been terminated

during the probationary period, a period during which they have no due

process rights. (Rivera Dep. p. 67-8).

Page 14

Seno a ome Ma OTE Nene Rm serine MNES ee

Thus, Rodriguez’s disciplinary practices, as ratified by DART’s

actions and inactions give rise to the inference of racial discrimination

as well as creating a disparate impact on blacks. This Court should

reverse the district court’s decision and remand back for a new trial by

jury.

Il. THE DISTRICT COURT ERRED IN FINDING THAT

DALLAS AREA RAPID TRANSIT REASONABLY

BELIEVED BOBBIE J. ANDERSON VIOLATED A

WORK RULE.

DART asserts that it was justified in terminating Anderson based

upon its investigations of the March 21, 1997 incident and the

conclusions it drew in regards to Anderson’s conduct on that occasion.

However, after reviewing the record fairly and objectively, it is clear

that DART’s articulated reason for its actions in terminating Anderson

were not legitimate but a pretext for discrimination.

DART declares that Anderson’s actions “were outside DART’s

jurisdiction.” Yet, the statutory authority says otherwise:

An authority may employ and commission its

own peace officers with power to make arrests in all

counties where the system is located when necessary to

prevent or abate the commission of an offense against

the laws of the state or a political subdivisions of the

state when the offense or threatened offense occurs on

or involves the system of the authority, to make arrests

in cases of an offense involving injury or detriment to

the system, to enforce all traffic laws and to investigate

traffic accidents which involve or occur in the system,

and to provide emergency and public safety services to

the system or persons who use the system. Tex. Rev.

Civ. Stat.Ann. Art. 1118x.

Case law defines the “system” as the “area within the boundaries

wherein service is provided or is supported by a general sales and use

Page 15

tax.” See e.g. Held v. State of Texas, 948 S.W.2d 45 (Tex. App.--

Houston [14th Dist.] 1997); State v. Norton, 899 S.W.2d 303, 304

(Tex. App.--Houston [14th Dist.] 1995, no pet.); State v. Elliott, 879

S.W.2d 381, 384 (Tex.App.--Waco 1994. pet. Ref’d).

Additionally, pursuant to the Texas Code of Criminal Procedure

Annotated, Article 2.13:

It is the duty of every peace officer to preserve

the peace within his Jurisdiction. To effect this Purpose,

he shall use ail lawful means. He shall in every case

where he is authorized by the provisions of this Code,

interfere without warrant to prevent or suppress crime.

Officer “vested with all nights, privileges, obligations and duties of peace

Officers in the State of Texas. This is confirmed by the language

contained on Anderson’s peace officer’s identification; oath of Office

and licenses. (Exhibit K).

to be confirmed by the Field Training Officer. As reflected by

Anderson’s log, he did not receive the instruction relative to jurisdiction.

(Exhibit K). Also, the Training Manual received by Anderson is

absolutely devoid of any mention of jurisdiction or any instruction that

transit officers were not to take action to Stop illegal, dangerous

conduct. DART argues that a Procedures Manual provided that

information. The inventory of equipment issued to Anderson reflects

that he did not receive a Procedures Manual. (Exhibit K). Chief

Rodriguez admits that he has a vague idea regarding the training that

probationary officers receive from the field traming officers. (Rodriguez

Dep. Vol. II, pp. 112-115).

DART repeatedly asserts that Anderson’s actions endangered

the public. However, DART has no evidence to support this claim.

DART had no proof of a high speed chase. The only proof DART had

was that Anderson was following the Jeep to prevent it from causing

harm to the public.

Pursuant to Texas Dep't of Community Affairs v. Burdine, 450

U.S. 248, 256 (1981), the employee can show pretext by proving the

employer’s reason is unworthy of credence. Anderson has proved that

DART’s reason for terminating him is unworthy of credence because it

is false. The district court erred in finding that DART reasonably

believe Anderson violated a work rule.

il. THE DISTRICT COURT ERRED IN FINDING THAT

DALLAS AREA RAPID TRANSIT IS NOT A “PERSON”

WITHIN THE MEANING OF 42 U.S.C. § 1983.

DART was not entitled to summary Judgment pursuant to 42

U.S.C. § 1983 or the Eleventh Amendment. The court should have

used the analysis set forth in Monell v. Department of Social Services,

436 U.S. 658 (1978). To determine whether DART is a “person” for

purposes of § 1983, the court must determine whether DART, a

political entity, is an arm of the state entitied to Eleventh Amendment

protections or a municipality and therefore, a “person” as contemplated

Page 17

under § 1983.

The Fifth Circuit has articulated a specific list of factors to be

reviewed in determining when an entity enjoys Eleventh Amendment

immunity. Clark v. Tarrant County, 798 F.2d 736, 744-45 (5th Cir.

1986). These factors include (1) whether state law views the entity as

an arm of the state; (2) the source of the entity’s funding; (3) the degree

of local autonomy retained; (4) whether the entity is concerned primarily

with local, as opposed to statewide problems; (5) whether the entity has

authority to sue and be sued in its own name; and (6) whether the entity

retams the right to hold and use property.

Using the above standard, it is clear that DART is not an arm of

State and is not entitled to Eleventh Amendment immunity and it is

subject to suit under § 1983.

Under the Texas Transportation Code, a regional transportation

authority may be created to provide transportation services to a defined

territory. While state statute defines the mechanism by which the

authority is created, a specific regional transportation authority such as

DART is not created by the Texas legislature. A regional transportation

authority can only come into existence after the preparation of a petition

of at least five percent (5%) of the registered voters requesting the

creation of such an authority (Tex. Transp. Code §452.701); the

adoption of a resolution describing the proposed territory (Tex. Transp.

Code §452.703); the conduct of public hearings (Tex. Transp. Code

§452.706); and a successful “confirmation election” is conducted (Tex.

Transp. Code §452.715). If the authority is not confirmed by election

by its third anniversary, that authority expires. (Tex. Transp. Code

§452.720).

These statutory requirements establish that DART is a separate

political entity. This is reaffirmed by Tex. Transp. Code §452.052 that

States that an authority is a public political entity and corporate body.

Under Texas law, DART is viewed as an authority which is considered

a political entity. According to the U.S. Supreme Court in Lake

Country Estates, Inc. v. Tahoe Regional Planning Agency, 99 S.Ct.

Page 18

1171, 1177 (1979), political subdivisions of the State have been

consistently refused protection under the Eleventh Amendment even

though such entities exercise a “slice of state power.”

In consideration of the other factors set forth in Clark v. Tarrant

County, that once the regional transit authority, DART in this case, is

| established, it is operated by an executive committee responsible for the

| “management, operation, and control of an authority and its property.”

(Tex. Transp. Code §452.053) The authority “may sue and be sued.”

(Tex. Transp. Code §452.054) It may generate funds by “reasonable and

| nondiscriminatory fares, tolls, charges, rents, ... tax revenues and

grants.” (Tex. Transp. Code § 452.061).

NLS ba) LE ENS ih Ria,

In consideration of the above, the Court should have found that

DART is a political subdivision of the State of Texas as it is a regional

authority and considered a local government unit. According to the

| Supreme Court in Monell, 436 U.S. at 690, local government units are

| included among those “persons” to whom the Civil Rights Act of 1871

applies.

Further, DART is analogous to other entities found to be local

political subdivisions of the state by the Fifth Circuit and therefore

subject to suit as “persons” acting under color of law. In Hickman v.

U.G. Lively and Metropolitan Transit Authority, 897 F.Supp. 955 (S.D.

Tex. 1995), the Court rules that Metropolitan qualified “as a local

government entity by virtue of Tex. Rev. Civ. State. Art. 1118 §13A.”

The Court further engaged in a discussion of potential liability under

§1983 without any hesitation or discussion of the applicability of §1983.

Similarly, in Houston Contractors Association v. Metropolitan Transit

Authority of Harris County, 984 F. Supp. 1027 (S.D. Tex. 1997), the

Court found that racially preferential contracting procedures used by

MTA (the Houston equivalent to DART) violated equal protection.

Again, the Court did not engage in any discussion regarding the

Eleventh Amendment or §1983.

DART is clearly a municipality under the above-stated standards

and is therefore, a “person” for purposes of §1983 liability. The district

Page 19

court erred in finding that DART was not a “person” for purposes of

§1983 liability.

CONCLUSION

After reviewing the record in conjunction with the above

argument, it is clear that the district court erred in granting summary

judgment for Dallas Area Rapid Transit. First, Anderson did present

material facts regarding discriminatory pretext in his termination;

second, DART did not reasonably believe that Anderson violated a

work rule; and third, DART is a “person” within the meaning of 42

U.S.C. § 1983 and should not be allowed immunity under the Eleventh

Amendment.

For the foregoing reasons, Bobbie J. Anderson respectfully prays

that the United States Supreme Court reverse the decisions of the Court

of Appeals for the Fifth Circuit and the District Court for the Northern

District of Texas and order the court to proceed to a jury trial in this

matter.

Respectfully submitted,

By: Ee a 7S aan

BOB “ANDERSON

1 Walnut St. #1045

Dallas, Texas 75243

(972) 690-3154

PRO SE

Page 20

APPENDIX A

[Filed May 6, 1999]

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 98-11302

Summary Calendar

BOBBIE J. ANDERSON,

Plaintiff-Appellant,

V.

DALLAS AREA RAPID TRANSIT,

Defendant-Appellee.

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:97-CV-1834-R

Before POLITZ, BARKSDALE, and STEWART, Circuit Judges.

PER CURIAM:!

Bobbie Anderson, pro se, appeals the summary judgment in

favor of Dallas Area Rapid Transit (DART).

' Pursuant to Sth Cir. R. 47.5, the Court has determined that this

opinion should bot be published and is not precedent except under the limited

circumstances set forth in 5th Cir. R. 47.5.4,

la

Anderson, a former transit officer for DART was terminated

following an incident whereby Anderson, while off-duty, followed a

Jeep, and, inter alia, exchanged words with the occupants and drew his

DART-issued firearm. Following his termination, Anderson protested

through DART’s dispute resolution process, which included review by

a management Appeals Committee. | Anderson’s request for

reinstatement was ultimately denied.

Anderson then filed this action against DART, claiming racial

discrimination and retaliation, in violation of Title VII, 42 U.S.C. §

2000¢ et seq., and constitutional violations under 42 U.S.C. §§ 1981,

1983, 1985, together with Texas common law claims. The parties

consented for the case to be transferred to a magistrate judge.

Subsequently, DART’s Summary judgment motion was granted.

Anderson asserts essentially that the district court erred in

finding that he had not presented a material fact issue regarding

discriminatory pretext in his termination; that DART reasonably

believed Anderson violated a work rule; and that DART is not a

“person” within the meaning of § 1983. Having reviewed the record

and the briefs, and pursuant to Fed. R. Civ. P. 56, we affirm for

essentially the reasons stated by the district court in its comprehensive

and well-reasoned opinion. See Anderson v. Dallas Area Rapid

Transit, CA3:97-CV-1834-BC (N.D. Tex. Sept. 29, 1998).?

AFFIRMED

? DART advises it intends to seek fees and expenses on the basis that

this appeal is frivolous. Such relief is DENIED.

2a

APPENDIX B

[Filed Sept. 29, 1998]

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

No. CA3:97-CV-1834-BC

BOBBIE J. ANDERSON,

Plaintiff,

V.

DALLAS AREA RAPID TRANSIT,

Defendant.

MEMORANDUM OPINION AND ORDER

Before the Court is Defendant Dallas Area Rapid Transit’s

Motion for Summary judgment, filed July 22, 1998. At issue in this

employment discrimination and civil rights action is whether Defendant

Dallas Area Rapid Transit (“DART”) unlawfully terminated Plaintiff in

retaliation for engaging in activity protected by Title VII of the Civil

Rights Act of 1964, as amended, 42 U.S.C. § 2000¢, et seq, (“Title

VII”) or discriminated against him on the basis of his race. Finding, as

a matter of law, that DART’s termination was not in violation of

Anderson’s statutory or constitutional nghts, the Court GRANTS

DART’s motion as follows:

I. Background

This is a suit brought by Plaintiff, Bobbie Anderson

(“Anderson”) against his former employer, DART, alleging racial

3a

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

1964, as amended, 42 U.S.C. § 2000¢ et seq., Constitutional violations

under 42 U.S.C. §§ 1981, 1983, 1985, and claims under Texas common

law. This case centers on Anderson’s termination on April 3, 1997.

Anderson, an African-American, who worked as a transit police officer

for DART, claims that the termination was based on his race and in

retaliation for his prior complaint to DART’s Chief of Police Juan

Rodriguez (“Rodriguez”), that black DART employees were disciplined

more harshly than Hispanic DART employees. What follows are the

pertinent facts surrounding the termination. '

Anderson worked from May 1996 through April 3, 1997, as a

transit police officer for DART. As a standard condition of

employment, Anderson was placed on an initial six month probationary

period. Anderson failed to satisfactorily complete this probation period,

and was terminated in September of 1996. However, the termination

was converted into a five day suspension and an extension of the initial

probation period from its original termination date of November 1996

to February 1997.

The incident on which Anderson’s lawsuit is based occurred on

March 21, 1997. Anderson was off-duty. Anderson and the occupants

of a Jeep exchanged words and Anderson followed or chased the Jeep

for approximately six miles through Dallas and University Park.? At one

point during the six-mile drive, Anderson exited his car and drew his

' These uncontested background facts are taken from the Defendant's

Mot. For Summ. J., filed on July 22, 1998, and the Pl.’s Resp. To Def’s Mot.

For Summ. J., filed on July 22, 1998. Unless characterized as a contention, all

back ground facts are undisputed.

? The exact characterization of the incident involving Anderson and

the occupants of the Jeep is highly disputed. Anderson contends he “followed”

the Jeep, and did not speed at any time. P1.’s Resp. To Def’s Mot. For Summ. J.

Conversely, DART contends Anderson was engaged in a “high-speed chase”.

Def’s Mot. For Summ. J. Although this characterization is highly contested and

throughly briefed, it is immaterial to this court’s decision.

4a

DART issued firearm.’ Anderson the continued to follow the Jeep until

it was pulled over by a University Park police officer. Anderson filed a

report on the incident and was placed on administrative leave pending

an investigation.

Anderson was terminated based on his involvement in the March

21, 1997 incident. He protested his termination through DART’s

dispute resolution process.‘ At step three in the process, Anderson

presented his case before the Committee, which found Anderson should

not be reinstated. Finally, DART’s President/Executive Director, Roger

Snoble (“Snoble”), reviewed the Committee’s written recommendation

and the documents presented to the Committee, and also denied

Anderson’s request for reinstatement.

Defendant DART has moved for summary judgment contending

for several reasons that judgment must be entered in its favor in this

case. First, with respect to Anderson’s claim of racial discrimination

under Title VII, DART argues that Anderson has failed to show that

DART’s proffered reasons for Anderson’s termination were a pretext

for discrimination and that race discrimination was the real reason.

Second, with respect to Anderson’s constitutional claims, DART argues

that it is not a person within the meaning of 42 U.S.C. §§ 1983 and

1985, and therefore it cannot be sued under either provision.

Alternately, should the court find DART is a person within the meaning

of the statutes, DART argues that the Eleventh Amendment to the

* Another contested issue is whether, as Plaintiff contends, he simply

drew his weapon and moved behind his car, or as Defendant contends, Anderson

drew his weapon and pointed it at the Jeep's occupants. Def.’s Mot. For Summ.

J.; Pl.’s Resp. To Def’s Mot. For Summ. J.

* DART’s dispute resolution process for employee grievances consist

of three steps. Step one requires the aggrieved employee to present his

complaint to his immediate supervisor. Step two allows the employee to submit

his complaint to the Manager of Employee Relations if it was not satisfactorily

resolved at step one of the process. Finally, step three allows the employee to

appeal his complaint if it was not satisfactorily resolved in step two to the

Management Appeals Committee (the “Committee”). The Committee submits

its recommendation to DART’s President/Executive Director who reviews the

Committee’s decision and either accepts it or makes an independent finding.

Sa

Constitution prohibits Anderson from proceeding against DART under

either § 1983 or § 1985. As for Anderson’s § 1981 claim, DART

argues it is entitled to summary judgment because the claim is

improperly asserted, in that, § 1983 supersedes claims under § 1981

since DART is a “state actor.” Finally, with respect to Anderson’s

retaliation claim under Title VII and his Texas common law claims,

DART argues that its undisputed summary judgment evidence

establishes a prima facie showing in its favor, and thus, based on

Anderson’s failure to respond to these claims, that DART is entitled to

judgment as a matter of law.

Anderson opposes the motion for summary judgment arguing

that genuine issues of material fact exist with respect to his disparate

treatment claim under Title VII and his claims under 42 U.S.C. §§ 1983

and 1981.°

Il. Standard of Review

Under Rule 56 © of the Federal Rules of Civil Procedure,

summary judgment is appropriate when the pleadings and record

evidence show that no genuine issue of material fact exists and that, as

a matter of law, the movant is entitled to judgment. Little v. Liquid Air

Corp., 37 F.3d 1069, 1075 (Sth Cir. 1994). “[T]he substantive law will

identify which facts are material.” Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 248, 106 S.Ct. 2505, 2510 (1986). Only disputes about those

facts will preclude the granting of summary judgment. /d. In a motion

for summary judgment, the burden is on the movant to prove that no

genuine issue of material fact exists. Latimer v. Smithkline & French

Lab., 919 F.2d 301, 303 (Sth Cir. 1990). If the non-movant bears the

burden of proof at trial, the movant for summary judgment need not

support the motion with evidence negating the opponent’s case; rather,

* In its Motion for Summary Judgment, DART asserts several grounds

for summary judgment that Anderson fails to address in his Response to

Defendant’s Motion For Summary Judgment. Specifically, Anderson fails to

respond to DART’s summary judgment claims on retaliation under Title VIL,

conspiracy under 42 U.S.C. § 1985, and defamation and exemplary damages

under Texas common law.

6a

the movant may satisfy its burden by showing that there is an absence

of evidence to support the non-movant’s case. /d.; Little, 37 F.3d at

1075.

Once the movant makes this showing, the burden shifts to the

non-movant to show that summary judgment is not appropriate. Little,

37 F.3d at 1075 (citing Celotex Corp. V. Catrett, 477 U.S. 317, 325,

106 S. Ct. 2548, 2553-54 (1986)). “This burden is not satisfied with

“some metaphysical doubt as to the material facts,’ ... by ‘conclusory

allegations.’ ... by ‘unsubstantiated assertions,’ or by only a ‘scintilla’

of evidence.” Id. (quoting Matsushita Elec. Indus. Co. V. Zenith Radio

Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 1356 (1986); Lujan v.

National Wildlife Fed’n, 497 U.S. 871-73, 110 S. Ct. 3177, 3180

(1990); Hopper v. Frank, 16 F.3d 92, 97 (Sth Cir. 1994); Davis v.

Chevron U.S.A., Inc., 14 F.3d 1082, 1086 (5" Cir. 1994)). Rather, the

non-moving party must “come forward with ‘specific facts showing that

there is a genuine issue for trial.’” Matsushita, 475 U.S. at 587, 106 S.

Ct. at 1356 (quoting Fed. R. Civ. P. 56(e)). In determining whether a

genuine issue for trial exists, the court must view all of the evidence in

the light most favorable to the non-movant. Richter v. Merchants Fast

Motor Lines, Inc., 83 F.3d 96, 98 (5™ Cir. 1996) (per curiam);

Gremillion v. Gulf coast Catering Co., 904 F.2d 290, 292 (5® Cir.

1990) (citing Bodnar v. Synpol, Inc., 843 F.2d 190, 192 (5" Cir.), cert.

denied, 488 U.S. 908, 109 S. Ct. 260 (1988).

Il. Analysis

A. Title VII Discrimination

Anderson argue that the motivation behind his termination was

his race. He asserts that, although he was terminated for violating a

DART work rule, some Hispanic DART employees who violated work

rules were not terminated.

Title VII makes it illegal for an employer to discriminate in the

terms, conditions or privileges of employment because of race. 42

U.S.C. § 2000e et seq. As a threshold matter, a plaintiff alleging

7a

discriminatory discharge must show that: (1) he was a member of the

protected class; (2) he was qualified for the job that he formerly held;

(3) he was discharged; and (4) employees outside the protected class

were more favorably treated. McDonnell Douglas Corp. v. Green, 411

U.S. 792, 802, 93 S. Ct. 1817, 36 L.Ed.2d 668 (1973)(Title VII).

Plaintiff must essentially show that he was treated differently than

similarly situated individuals and that a causal connection exists between

his race and the adverse employment decision. Furnco Constr. Corp.

v. Waters, 438 U.S. 567, 575-77 (1978).

In employment discrimination cases, the Supreme Court has

formulated an evidentiary procedure of shifting burdens. See

Bodenheimer v. PPG Industries, Inc., 5 F.3d 955, 957 (5® Cir. 1993)

(citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct.

1817, 36 L.Ed.2d 668 (1973)). First the plaintiff is required to make a

prima facie case by demonstrating the elements required for the

particular type of discrimination he is alleging. Upon meeting this

requirement, a presumption of discrimination arises which the defendant

must then rebut by setting forth a legitimate, nondiscriminatory reason

for the challenged action. Jd (Citing Olitsky v. Spencer Gifts, Inc., 964

F.2d 1471, 1478 n.19 (5™ Cir. 1992), cert. Denied, 507 U.S. 909, 113

S. Ct. 1253 (1993)). Once the employer has met this burden of

production, the employee’s prima facie case dissolves and the plaintiff

must prove that the employer’s proffered reason is a pretext for the type

of discrimination alleged. Bodenheimer, 5 F.3d at 957.

Once the employer has met its burden of production, the

plaintiff's burden of persuasion arises, and he must prove that the

proffered reasons are not just pretextual but pretexts for discrimination

of the type alleged by the employee. Bodenheimer, 5 F.3d at 957. It is

not enough for the employee to merely show that the defendant’s

reasons were not credible; rather, to ultimately prevail, the plaintiff must

prove by a “preponderance of the evidence that the employer’s reasons

were not the true reason for the employment decision and that unlawful

discrimination was.” Jd. (emphasis added) (citing St. Mary’s Honor

Ctr. v. Hicks, 509 U.S. 502, 125 L.Ed.2d 407, 113 S. Ct. 2742 (1993)).

8a

In work rule violation cases, as here, a Title VII plaintiff may

establish a prima facie case by showing “‘either that he did not violate

the rule or that, if he did, [Hispanic] employees who engaged in similar

acts were not punished similarly.”” Mayberry v. Vought Aircraft Co., 55

F.3d 1086, 1090 (5" Cir. 1995). (quoting Green v. Armstrong Rubber

Co., 612 F.2d 967, 968 (5" Cir. 1980), cert. denied, 449 U.S. 879, 101

S. Ct. 227, 55 L.Ed.2d 102 (1980)).

Anderson attempts to establish a prima facie case via both

routes, claiming he did not exceed DART’s jurisdictional mandates, and

that, even assuming he had, that DART engaged in disparate treatment

because similarly situated Hispanic employees have not been as severely

disciplined. Each of these bases upon which Anderson attempts to

establish his prima facie case are addressed below.

1. Disparate Treatment-Prima Facie Case

In an attempt to establish a prima facie showing that Hispanic

employees were not disciplined as severely for similar infractions of

work rules as he was, Anderson’s summary judgment evidence consists

of the disciplinary history of two Hispanic DART transit police officers,

Julio Sanchez (“Sanchez”) and Thomas Montoya (“Montoya”). PI.’s

Resp. To Def.’s Mot. For Summ. J. Ex. 1, Rodriguez Depo. At 305-06.

To establish a prima facie case in this manner, Anderson must show that

Hispanic employees were treated differently under circumstances

“nearly identical” to his. Mayberry v. Vought Aircraft Co., 55 F.3d

1086, 1090 (5* Cir. 1995); Little v. Republic Ref. Co., 924 F.2d 93, 97

(S* Cir. 1991); Smith v. Wal-Mart Stores, 891 F.2d 1177, 1180 (5* Cir.

1990).

In this regard, Anderson has offered evidence that Hispanic

employees have been involved in infraction of DART’s policies and

rules and yet have not been terminated. However, Anderson’s own

summary judgment evidence demonstrates the material differences

between Sanchez’ and Montoya’s infractions and his own. Sanchez’

infractions concerned his use of unnecessary force while on-duty as a

DART transit officer. Pl.’s Resp. To Def.’s Mot. For Summ. J. Ex. I.

9a

Montoya’s infractions stemmed from an off-duty bar fight which

resulted in Montoya being charged with a Class C misdemeanor. Def.’s

Mot. For Summ. J. App. 179-183. In contrast; Anderson’s termination

was based on his off-duty actions taken while holding himself out as

acting in his official capacity as a DART transit officer. Additionally, his

actions allegedly exceeded the scope of DART’s jurisdictional

boundaries. Def.’s Mot. For Summ. J. App. 73-77. Although both

Sanchez and Montoya’s conduct was serious, neither one allegedly

compromised DART’s jurisdictional boundaries, nor purported to

conduct DART business while off-duty. Accordingly, the discipline of

Sanchez and Montoya is not competent summary judgment evidence

that Hispanic employees in “nearly identical” circumstances have been

treated differently, and thus, Anderson has failed to establish his prima

facie case of disparate treatment.

4 No Violation of Work Rule-Prima Facie Case

Anderson may alternatively establish his prima facie case of

discriminatory discharge by showing he did not violate the work-rule for

which he was disciplined. Green v. Armstrong Rubber Co., 612 F.2d

967, 968 (5" Cir. 1980). To establish his prima facie case, Anderson

offers summary judgment evidence in the form of the DART transit

Police Procedures Manual, which states in § 5.2 that officers should be

prepared to act whenever their services are required, whether they are

on or off duty. Pl.’s Resp. To Def.’s Mot. For Summ. J. Tab #J at 43.

Anderson’s interpretation of this section as permitting DART transit

officers to act on DART’s behalf while off-duty is supported by

summary judgment evidence of a second off-duty incident Anderson

was involved in on March 21, 1997. During this incident, Anderson,

while off-duty, identified himself as a DART transit police officer and

broke up a fight between two intoxicated people. P1.’s Resp. To Def.’s

Mot. For Summ. J. Bateman Depo. 46-50. In response to this incident

Anderson was neither disciplined nor investigated for his actions. Id.

Finally, Anderson contends that the area in which the incident occurred

on March 21, 1997 was actually within Dart’s jurisdictional boundaries

as DART bus lines run on the same stretch of Northwest Highway

Anderson and the Jeep traveled. Pl.’s Resp. To Def.’s Mot. For Summ.

10a

J. With this proof, Anderson has established a prima facie case that he

sis not violate DART’s work rule and DART must satisfy its burden of

production.

DART responds to Anderson’s prima facie case by insisting that

there was no racial motivation in its decision to terminate Anderson;

that the decision was based solely on its conclusion, following an

investigation, that Anderson violated a work rule concerning DART’s

jurisdictional boundaries. Def.’s Mot. For Summ. J. App. 73-78.

DART has therefore discharged its burden of production, and the

burden shifts to Anderson to prove DART’s proffered reason is merely

a pretext for discriminaticn. St. Mary’s Honor Ctr. v. Hicks, 509 U.S.

502, 510, 125 L.Ed.2d 407, 113 S.Ct. 2742 (1193).

Anderson first attempts to meet his burden of persuasion and

prove DART’s proffered nondiscriminatory reason is pretextual

essentially by relying upon his disparate treatment summary judgment

evidence. As this Court has discussed above, however, Anderson’s

evidence of disparate treatment has failed to show Hispanic officers

were treated differently under the circumstances that are “nearly

identical” to Anderson’s, and thus, Anderson’s evidence of disparate

treatment fails to rebut DART’s nondiscriminatory reason.

Anderson next attempts to meet his burden of persuasion and

prove DART’s proffered nondiscriminatory reason is a pretext for

discrimination by asserting that he did not violate a work rule.

However, since DART based its decision to terminate Anderson on an

investigation by the Committee with regard to allegations that he

violated DART policies, the issue is not the validity of these allegations

but whether the Committee reasonably believed the allegations against

Anderson and acted upon them in good faith. Singh v. Shoney's, 64

F.3d 217, 219 (5" Cir. 1995); See also Waggoner v. City of Garland,

987 F.2d 1160, 1165 (S* Cir. 1993). Anderson must at least raise a fact

issue that the Committee did not actually believe the allegations but

instead used it as a pretext for an otherwise discriminatory dismissal.

Waggoner, 987 F.2d at 1165. DART contends that Anderson cannot

meet this burden of persuasion articulated by the Fifth Circuit in

lla

Waggoner and Singh.

Although there is some summary judgment evidence in the

record which reflects on the motivations of Rodriguez, this evidence has

no bearing on the motivation of the Committee.° Specifically, there is

the deposition testimony of Sergeant Billy Bateman (“Bateman”),

Anderson’s immediate supervisor on March 21, 1997. P1.’s Resp. To

Def.’s Mot. For Summ. J. Bateman Depo. 72-74. In his deposition,

Bateman stated that he had currently had an EEO claim of age

discrimination pending against Rodriguez, and that Bateman felt

Rodriguez was capable of discriminating against classes of federally

protected people. Id. Anderson also offers the deposition of Snoble. In

his deposition, Snoble stated that “diversity” was an area Rodriguez

needed to work on in the past, and that “early on, there were charges

that we only had primarily Hispanic officers.” Pl.’s Resp. To Def.’s

Mot. For Summ. J. Snoble Depo. 59. Although this summary judgment

evidence may call into question Rodriguez’ motives with respect to his

decisions as Chief it bears not on the intentions of the Committee.

Rodriguez, although present at the Committee’s hearing, was not a

member of the three person, racially diverse panel that investigated

Anderson’s conduct and therefore evidence of Rodriguez’ possible

racial bias does not call into question the Committees’ motivation in

making the decision to terminate Anderson. Anderson has therefore

failed to show any genuine issue of material fact exists with respect to

DART’s proffered legitimate reasons for his termination, and this Court

grants DART’s motion for summary judgment on the issue of

discrimination under Title VII.

B. Title VII Retaliation

DART moves for summary judgment on Anderson’s claim of

retaliation. DART contends that its summary judgment evidence on the

* in his Response, Anderson does not present the following summary

judgment evidence in the context of disproving a work rule violation. Instead,

Anderson raises the following summary judgment evidence in a footnote during

a discussion of custom and usage liability under 42 U.S.C. §1983. Pl.’s Resp.

To Def.’s Mot. For Summ. J. fh. 105 at 45.

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issue of retaliation establishes a prima facie case in its favor, which,

based on Anderson’s failure to respond, entitles DART tp judgment as

a matter of law.

To make a prima facie case for reprisal discrimination, plaintiff

must prove that (1) he engaged in activity protected by Title VII; (2) he

was the subject of an adverse employment action; and (3) there exists

a causal link between his protected activity and the adverse action.

Barrow v. New Orleans S.S. Ass’n., 10 F.3d 292. 298 (5" Cir. 1994);

Collins v. Baptist Mem’ Geriatric Ctr., 937 F.2d 190, 193 (5® Cir.

1991), cert. Denied, 112 S.Ct. 968, 117 L.Ed.2d 133 (1991). If the

employee can prove a prima facie case of reprisal, the burden of proof

shifts to the employer to articulate a legitimate, non-discriminatory

reason for plaintiff's discharge. Id.

This Court notes that Anderson has failed to respond to DART’s

summary judgment claim for retaliation under Title VII. Rule 56(e)

permits a proper summary judgment motion to be opposed bu the non-

movant by many kinds of evidentiary materials listed in the rule. Fed.

R. Civ. P. 56(e). If the adverse party does not so respond, the court

may grant summary judgment is the movant has made a prima facie

showing that it is entitled to such relief. Eversly v. Mbank, 843 F.2d

172, 174 (5® Cir. 1988); Fed. R. Civ. P. 56(e). A court may not grant

a default summary judgment simply because the non-movant has failed

to respond. Eversly, 843 F.2d at 174; Tutton v. Garland Indep. School

Dist., 733 F.Supp. 1113, 1117 (N.D.Tex. 1990). The court may,

however, accept the movant’s evidence as undisputed evidence. Vega

v. Parsley, 700 F.Supp. 879, 881 (W.D.Tex. 1988).

Based on Anderson’s failure to respond to DART’s motion for

summary judgment on Anderson’s claim of retaliation under Title VII,

this court accepts as undisputed DART’s advancement of legitimate ,

non-discriminatory reasons for Anderson’s termination. Specifically,

DART offers as summary judgment evidence the Recommendations and

Findings (the “Findings”) of the Committee. Def.’s Mot. For Summ. J.

App.73-77. In its report, the Committee found Anderson violated

DART’s authority both with respect to subject matter jurisdiction and

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jurisdictional property boundaries. Id. DART also offers the deposition

of Snoble. Def.’s Mot. For Summ. J. App. 87-90. In his deposition,

Snoble states that he reviewed the Findings and documents relied on by

the Committee in arriving at its conclusion, and decided not to reinstate

Anderson based on his belief that Anderson did, in fact, violate DART’s

work rules. Id.

In the absence of any evidence from Anderson showing DART’s

explanation to be a “pretext” and in the absence of any evidence

showing “but for” causation, this court grants DART’s motion for

summary judgment claim of retaliation under Title VI. See

Bodenheimer v. PPG Indus., 5 F.3d 955, 957 (5* Cir. 1993).

. Sections 1981, 1983, 1985

l. Sections 1983 and 1985

Anderson claims that his termination violated his Fourteenth

Amendment rights. In Anderson’s original complaint, he alleges a

conspiracy existed at DART to violate his 14% Amendment Equal

Protection rights. In his response to DART’s motion for summary

judgment, Anderson also alleges a claim of conspiracy and violation of

his 14" Amendment right to Procedural Due Process.

In order to state a claim under § 1983, Anderson must show that

(1) a person, (2) acting under color of state law, (3) deprived him of a

right secured by the Constitution or laws of the United States. 42

U.S.C. § 1983.

In order to state a claim under § 1985, Anderson must show

that: (1) a conspiracy involving two or more persons which is (2) for the

purpose of depriving, directly or indirectly, a person or class of persons

of the equal protection of the laws and (3) an act in furtherance of the

conspiracy which (4) causes injury to a person or property, or a

deprivation of any right or privilege of a citizen of the United States.

Hilliard v. Ferguson, 30 F.3d 649, 652-53 (5® Cir. 1994).

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Anderson’s claims that his termination was in violation of §§

1983 and 1985 as a matter of law. DART is a political subdivision of

the state of Texas, created by the Texas Legislature; and is a public

entity. Davis v. Mathis, 846 S.W.2d 84, 87 (Tex. App.-Dallas 1992, no

writ); Tex. Transp. Code Ann. § 452.052 (Pamphlet 1998). States and

their political subdivisions such as DART are not “persons” within the

meaning of 42 U.S.C. §1983 or §1985. Morse v. Republican Party of

Va., 517 U.S. 186, 221 n.34 (1996); Will v. Michigan Dept. of State

Police, 491 U.S. 58, 65-66 (1989); Tolbert v. Vasquez, No. 3:93-CV-

1468-X, slip op. At 12 (N.D. Tex. Mar. 27, 1998). Therefore DART

cannot be liable for claims under §§ 1983 or 1985.

Additionally, this court notes that even if DART was found to

be a “person” within the meaning of 42 U.S.C. §§ 1983 and 1985, the

Eleventh Amendment to the united States Constitution operates to bar

a suit against DART under § 1983 or § 1985. The Eleventh

Amendment “bars suits in federal court by citizens of a state against

their own state or a state agency or department.” Richardson v.

Southern Univ., 118 F.3d 450, 452 (5 Cir. 1997), cert. denied, 118

S.Ct. 858 (1998); Baldwin v. Univ. TX, 945 F.Supp. 1022, 1030 (S.D.

Tex. 1996) (State of Texas has not waived Eleventh Amendment

immunity with regard to § 1983 suits). DART is a political subdivision

of the state of Texas, and is therefore immune from suit under the

Eleventh Amendment. Davis, 846 S.W.2d at 87; Tolbert at 12; Tex.

Transp. Code Ann. §452.052 (Pamphiet 1998).

Finally, this Court notes that had it not granted summary

judgment on DART’s § 1985 claim, since it has granted DART’s

summary judgment claim of retaliation under Title VII, it must dismiss

Anderson’s claim of conspiracy under § 1985. Since this Court has

found no deprivation of Anderson’s constitutional rights, no basis exists

for assigning liability for a conspiracy. The Fifth Circuit has stated that

“it remains necessary to prove an actual deprivation of a constitutional

right; a conspiracy to deprive is insufficient.” Villanueva v. McInnis,

723 F.2d 414, 418 (5" Cir. 1984).

¥ Section 1981

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3 me

Anderson alleges that DART’s discrimmatory discharge violated

§ 1981. He argues that the wrongful termination of his employment

contract with DART impaired his right to make, perform, modify and

terminate contracts free of impairment under color of state law. P1.’s

Original Compl.

Section 1981 does not create a new substantive right or cause

of action. Instead, it merely provides an additional remedy for

“unlawful intentional discrimination...prohibited...under...42 U.S.C. §

2000e-2 or 2000e-3.” 42 U.S.C. § 1981a(1)(1). The same legal analysis

applies to race discrimination cases under both Title VII and § 1981.

Whitting v. Jackson State Univ., 616 F.2d 116 (5" Cir. 1980). The

same evidentiary framework governing claims of employment

discrimination under Title VII govern claims of racial discrimination

brought under § 1981. LaPierre v. Benson Nissan, Inc., 86 F.3d 444,

448 n.2 (5" Cir. 1996) (citing Patterson v. McLean Credit Union, 491

U.S. 164, 186 (1989)).

This Court does not reach the issue of whether Anderson has

met his evidentiary burdens under §1981, however. As Anderson may

not bring an action under § 1983, his claim under § 1981 must fail. The

Supreme Court in Jett v. Dallas Indep. School Dist., 491 U.S. 701, 733-

36, 109 S.Ct. 2702, 105 L.Ed2d 598, 625-27 (1989), held that § 1983

provides the “exclusive federal damages remedy for the violation of the

rights guaranteed by § 1981 when the claim is pressed against a state

actor,” Id. At 735. Since this Court has determined DART cannot be

sued under § 1983 both because it is not a “person” within the meaning

of 42 U.S.C. § 1983 and because the Eleventh Amendment prohibits a

Suit against it, Anderson’s claim under § 1981 must fail. Therefore, this

Court grants DART’s motion for summary judgment on the § 198]

Claim.

D. Defamation and Exemplary Damages Claims

This Court notes that plaintiff Anderson has failed to respond to

several claims in DART’s motion for summary judgment. Specifically,

Anderson failed to respond to DART’s summary judgment claims on

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defamation and exemplary damages. As mentioned previously, if the

adverse party does not respond, the court may grant summary judgment

if the movant has made a prima facie showing that it is entitled to such

relief. Eversly v. Mbank, 843 F.2d 172, 174 (5™ Cir. 1988); Fed. R. civ.

P. 56(e). The court may also accept the movant’s evidence as

undisputed. United States v. $252,671.48 in U.S. Currency, 734

F.Supp. 254, 256 (N.D. Tex. 1990); Tutton, 733 F.Supp. At 1117.

Based on Anderson’s failure to respond to DART’s motion for

summary judgment on Anderson’s claim of defamation, this Court

accepts as undisputed DART’s summary judgment evidence of its

intergovernmental immunity from liability for intentional torts under the

Texas Tort Claims Act (the “Act”). Tolbert at 11; Tex. Civ. Prac. &

Rem. Code Ann. § 101.021 et seg (Vernon 1997 & Supp. 1998). Asa

political subdivision of the state of Texas, any limited waiver of

sovereign immunity under the Act does not apply where the claim arises

out of an imtentional tort, such as defamation. Gillium v. City of

Kerrville, 3 F.3d 117, 123 (5* Cir. 1993); Tex. Civ. Prac. & Rem. Code

Ann. §101.021 et seg (Vernon 1997 & Supp. 1998). This evidence

constitutes a prima facie showing of immunity, and this court therefore

grants DART’s motion for summary judgment on the claim of

defamation.

Finally, based on Anderson’s failure to respond to DART’s

motion for summary judgment on Anderson’s claim of exemplary

damages, this Court accepts as undisputed DART’s summary judgment

evidence that DART, as a governmental unit of the state of Texas, is not

subject to punitive or exemplary damages. Tex. Civ. Prac. & Rem.

Code Ann. §§ 101.021 et seg, 101.024 (Vernon 1997 & Supp. 1998).

This evidence constitutes a prima facie showing of DART’s immunity

from liability for exemplary damages, and this Court therefore grants

DART’s motion for summary judgment on the claim for exemplary

damages.

IV. Conclusion

For the foregoing reasons, it is ORDERED that defendant’s

17a

Motion for Summary Judgment filed July 22, 1998 be GRANTED.

SO ORDERED,

September 29, 1998.

/s/ Jane J. Boyle

United States Magistrate Judge

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CERTIFICATE OF SERVICE

I hereby certified that three true and correct copies of

the foregoing Brief have been delivered to:

Patricia M. Reed

Dallas Area Rapid Transit Legal Department

P.O. Box 660163

Dallas, Texas 75266-7255

Mark A. Shank

4800 Renaissance Tower

Dallas, Texas 75270-2146

by certified mail, return receipt requested, on this oH day of

September, 1999.

Petrie Letl. Jee