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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1999
- **Citation:** 528 U.S. 1062

## Text

Supreme Court, U.S.
FILED
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—

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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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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

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THE DISTRICT COURT ERRED IN
FINDING THAT DALLAS AREA RAPID
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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

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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

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_0209%3A1. Public record. Not legal advice.